PUBLIC BUSINESS. - MESSAGE FROM THE DAIL.—PRIVATE BILLS RELATING TO MATRIMONIAL MATTERS.

AN CATHAOIRLEACH

The next matter upon the Agenda is the consideration of the Message received from the Dáil in the terms upon the Order Paper. It reads as follows:—

That the Joint Committee on Standing Orders relative to Private Business be requested to submit additional Standing Orders regulating the procedure to be adopted in connection with Private Bills relating to matrimonial matters other than Bills of Divorce a vinculo matrimonii, and to propose such alterations in the Standing Orders as will prevent the introducion of Bills of Divorce a vinculo matrimonii; and that a Message be sent to the Seanad requesting its concurrence in this Resolution.

As the Seanad is aware, under its Standing Orders, I am placed in the very responsible position of being the sole judge to decide upon the question of order arising in the Seanad. Since this Message was received, I have given to it many hours of very anxious study and consideration. I have arrived at the definite, clear and distinct conclusion that any such resolution would be out of order on the part of the Seanad, would be in distinct conflict with its Standing Orders, and would be in direct violation of the Constitution. Any decision to the contrary would involve such far-reaching and momentous consequences entirely out of proportion to the importance of the issue as to whether Private Bills authorising divorce a vinculo should be allowed or not, that I hope the Seanad will give me its indulgence if I endeavour to explain, I am afraid at some length, not only the exact nature of what it is I am to decide, but also give to them the reasons and grounds upon which that decision is based. In the first place, it is perfectly plain to anyone who reads the terms of the proposed Resolution which the Dáil has requested the Seanad to pass, that it involves a decision on the part of the Seanad, by Resolution, that no permission should be given for the introduction of Private Bills dealing with the question of divorce a vinculo. That, of course, is at the root of the resolution, because the resolution requires the Seanad to call upon the Standing Orders Committee to invent Standing Orders which would prevent the possibility of the introduction of any such Bill.

Shortly stated, my clear and distinct view is that any such course requires legislation. Under the Constitution it is absolutely plain and clear that any such course as that proposed by the Resolution cannot be legally effected by Resolution, but requires the authority of legislation. That I have stated fairly the purpose and object of this Resolution will not, I think, be questioned. No one who reads the frank and open statement of President Cosgrave when introducing it into the Dáil can have any doubt upon that issue, because he distinctly stated that under the existing Private Bill Standing Orders, and under the Constitution, as it exists, up to date, these Private Bills dealing with divorce could be legitimately and lawfully introduced; and what the Government sought by this Resolution was a declaration that for the future the introduction of such Bills would not be permitted. Therefore, I am right in saying that the intent and purpose and meaning of this Resolution is to declare on the authority of the Oireachtas—the Dáil having already passed it——that it no longer will be legal or admissible for any citizen of the Free State to tender or introduce a Private Bill asking for release in the nature of divorce a vinculo.

Now, the history of this particular Private Bill legislation is bound up with the history of Private Bill legislation altogether. Private Bill legislation or the authority for it is not to be found in any written enactment. It has its authority and its origin in the Common Law, by which it has been held for centuries that it is the right of every citizen to apply by Private Bill, in the shape of a petition to Parliament, for any private right or for the relief of any private grievance, or for the purpose of acquiring rights of compulsory powers, or of the acquisition of the property of his neighbour or of the State. All such Bills were treated as Private Bills. They fall under two categories: first, Bills which deal simply with the private interest of the individual, which either seek to gain some personal advantage or to get rid of some personal grievances; or else, they are Bills which seek to acquire for the purposes of trade or enterprise an interest of a public character, or seek to acquire compulsory powers for the acquisition of the lands of the individual or of the State.

These two classes are grouped together under the category of Private Bills, and for centuries it has been the undoubted and unchallenged right of every citizen, every subject of the United Kingdom, to apply to Parliament by petition in the shape of a Private Bill for relief or for powers under either of these heads. That right carried with it, of course, the correlative right which Parliament always claimed, and which for centuries it has asserted and recognised—that is the right either to pass these Private Bills into law by legislation in the same way as any other Bill, or else to reject them in the course of that procedure.

From time to time elaborate codes of Standing Orders have been passed by the Imperial Parliament for the purpose of providing facilities and furnishing procedure to enable these Private Bills to be brought before both Houses of Parliament to receive adequate and proper discussion. These Standing Orders, as I have said, were for the purpose of providing facilities and providing procedure, just as in the same way the Standing Orders of the Seanad have been passed to facilitate business and to further procedure.

For the first time, so far as my researches have gone into the history of our Constitution, it is sought by a Standing Order, not to facilitate the introduction of a Private Bill, but to kill the introduction of one particular class of Private Bill. I say nothing as to the policy of that. I am not concerned with it. It may be right or it may be wrong for the State to interfere in this particular matter of divorce a vinculo, and to say that in the future there shall be no such liberty allowed or tolerated in the Free State. That is entirely a matter of Government policy, a matter entirely of the votes of the Oireachtas, and I am not concerned with it. Personally speaking, if I may be allowed to say so, I am not one of those who crave for any facilities, or extension of facilities in the matter of divorce. That does not arise now. It is no part of my duty to deal with that, but I am speaking purely on the matter of the question of the legality of the proceedings adopted by the Government. I say again that in no part of the history of our Constitution, and I think I can safely challenge contradiction on this, will there be found a single instance in which legislation of this kind has ever been carried out by resolution or by Standing Order.

When we come to the Constitution we will find that this right was the inherent right of every subject. And let there be no mistake as to the right I am speaking of: I am speaking merely as to the right to apply by petition in the shape of Private Bill, because that is an entirely different thing to having that Bill passed. There was never at any time the right of the subject to have such a Bill passed. That is a matter on which he took his chance, according to what view Parliament took of the matter, and he ran the gauntlet of having it rejected or passed by Parliament. The Divorce Bill stood on no higher or lower grade than that. Parliament claimed and asserted the right of either passing these Divorce Bills into law or rejecting them, and during the many centuries during which these Private Divorce Bills have been passed—including the years in which they were passed by the ante-Union Parliament, the Irish Parliament —the Parliament of Great Britain always claimed and exercised the right of discriminating between these Bills and of passing or rejecting them on their sole authority or discretion. Therefore the right I am speaking of, of which the citizens of the Free State would be deprived if this resolution were passed, is the right to apply by Private Bill, that right, as I have said, depending for its fulfilment on the ultimate will of the Oireachtas as to whether they will or will not pass it into law. Now that right is protected by the Constitution to the same degree, no more and no less, as all those great rights of constitutional liberty and freedom which are the distinction between free men and bondsmen, the right of liberty of conscience, freedom of speech, freedom from arrest and imprisonment without trial, the right of trial by jury—those rights whose foundation is not to be got in any written statute, but are to be found embedded in the roots of our common law, the result of the victory of the people in their struggle for liberty, broadening down, as Hallam said, from precedent to precedent, until they became what great judges and jurists recognised as the law of the land.

These great principles in our Constitution have no higher or greater sanction than any other right that was in existence at the date when the Treaty was passed. They are all covered and protected by the Constitution, which says that they are all "to remain in full force and effect unless and until they are either amended or repealed"—by what? Not by a Standing Order, not by a resolution, but "by an enactment of the Oireachtas." So that if I am right in my assumption—and that assumption has been admitted by the President; any other assumption would be wholly inconsistent with the fact that the Oireachtas has already prepared Standing Orders authorising Private Bills, and a number of these Private Bills have been already heard and disposed of—if I am right, then, in the assumption that these Private Bills to-day, and the right of the citizen to bring in a Private Bill and apply to have it passed into an Act of Parliament, are protected under the Constitution, then the Constitution says it can only be taken away by legislation. Here it is sought, as I have said over and over, to take it away by resolution, and on that account it is, in my opinion, not only unconstitutional but ultra vires. The Constitution affords another remarkable test which anyone of us can understand when I call your attention to it, a remarkable test of the legality of such a method by which rights are to be destroyed or swept away. Before I refer to that let me just say this. A very remarkable speech was made in this connection in the debate in the Dáil by Deputy Johnson, to which I shall have to refer at more length in a few minutes. In the course of that speech he pointed out that if this could be done by resolution in the case of this particular form of Private Bill it could be equally lawfully done in the case of all other Private Bills. He took the instance of the Electricity Bills, of Bills for the acquisition of water-power, and so on, and he pointed out that if this precedent was once established and that legislation was allowed to be carried out by this short-cut of resolution of both Houses, any powerful Government commanding a majority in both Houses could at any time do the same with any other existing Private Bill legislation. He was, of course, absolutely right in that, because the right to apply for a Private Bill for electricity power, or under any of these schemes for which promoters bring in their Private Bills, is precisely the same, is founded on the same principles and has the same origin as the right of the individual to apply for a divorce a vinculo, and if any or all or each of these, in the opinion of the Government or of the Oireachtas ought to cease, then there is no difficulty in the machinery, because all that is required—but it is essential—is that that should be provided for, not by resolution, not by Standing Order, but by legislation.

I have said that in this respect Private Bills stand precisely on the same footing as all other Bills. I wonder what would the House think if a powerful Government, controlling, as I have said, a majority in both Houses, were to send from the Dáil a resolution to this House asking it to agree to a resolution that in the case of high treason the accused man was not to be entitled to a jury. Would the House sanction that, or listen to it for a moment? And yet the right to have his case tried by a jury depends on no higher or greater sanction either under the Constitution or at common law than this right of the individual citizen to apply for relief by Private Bill. I said that there was a very remarkable illustration which, I think, affords a very simple test as to the soundness of the view I have put forward. At a very early stage, after the institution of this House and the Dáil, the Speaker and myself found ourselves confronted with a very difficult position in the event of it being the opinion of either of us in our respective domains that a Bill that was introduced, either by the Government or somebody else, contained in its terms an alteration of the Constitution. We were confronted with the question as to what our duty would be in such circumstances, and he and I came to the conclusion that it would be wiser and more prudent for us, under such circumstances, to allow the Bill to go through, or the objectionable clause in it to go through, and leave the responsibility for it upon those who introduce it, and for this reason: If by our ruling the clause of the Bill was cast aside, there was no remedy. The Bill was dead or the clause was dead. On the other hand, if we let the Bill go through, although it did in our opinion violate the Constitution, the citizens would still have their remedy, because under the Constitution they were entitled to bring before the High Courts of Justice in this country any enactment which they alleged contained a violation of the Constitution. But, mark my words: they could only bring it before the High Court if it was found in an enactment, that is to say, in a statute, and the result of allowing legislation of this kind to go through by a resolution or by a Standing Order, would be that, first, you would deprive the Courts of any power or any right to scrutinise the resolution, or to say whether it violated the Constitution or not, because it was not an enactment, and the only power that is given to the Courts in connection with that matter is when the alteration of the law is embodied in an enactment. Could there be any greater proof of my contention than that: that the Constitution never imagined for a second or sanctioned the idea that legislation which might have those astonishing results and effects could be passed by a mere resolution or by a Standing Order? That, I think, affords practically a conclusive test of the question. That is in the Constitution. But there is another right that this resolution would take away and one of no less importance: that is, the power and the right of this House, and of the other House, as constituting the Oireachtas, to legislate on these questions. It is not only a power conferred upon them, but it is their right, and if this resolution were passed it would restrict their right of legislation in regard to one particular subject, the matter of Private Bills, and would take out of the hands of the Oireachtas all power to legislate in regard to that particular matter. That would be a distinct derogation of the powers of this House and of the Dáil under the Constitution. Therefore, I am satisfied, and so decide and rule, that this resolution in its present form seeks and asks this House to do something which it has no power to do, and that if this resolution were passed it would be a distinct violation of the Constitution and would be a very dangerous precedent. If it was sanctioned in this case and next week was attempted in the case of some of those great constitutional liberties to which I have referred, whose guarantees are to be found in the same Constitution, what answer would I have or would the Speaker have, if we had ruled this particular resolution to be in order? We would have none.

All that I have said I want to emphasise again, because there is always a great risk of one being misunderstood in technical matters of this kind, and I am very anxious, whether I be right or wrong, and whether any individual Senator agrees with my view or not, that, at least, he or she should thoroughly understand me. All I am deciding and ruling is this. That this sort of alteration in the existing rights, inherent in each individual in the Free State, cannot be destroyed or taken away except by appropriate legislation. The extraordinary thing in this connection in regard to the debate upon this question in the Dáil is the fact that this relief or change of the law could be met by legislation was never once adverted to in the course of the debate. The whole debate there was allowed to run on the assumption that they had no alternative between passing this resolution and allowing Bills to continue as heretofore. Of course that is entirely wrong, because the solution of the whole difficulty, and the remedy, is provided by the Constitution itself and clearly marked out, and is even provided and arranged under the Standing Orders of this House and the Dáil, and that is to say, by legislation.

Let me just remind you of one of our own Standing Orders—of course the Standing Orders cannot go better than the Constitution, but they are useful to consider as being an exposition of the Constitution. You will find when we come to our Standing Orders, which in this respect are practically identical with those of the other House, that they define what could be done by resolution and what requires Bills. There were Standing Orders passed that any matter that required legislation must necessarily take the form of Bills and could not take the form of a resolution. These are the present Standing Orders of this House; so that this resolution, intended and calculated to destroy this existing right of every citizen to make petition to Parliament for a Private Bill, would be not merely, as I have said, a violation of the Constitution, but in direct conflict with the Standing Orders governing our proceedings in this House.

I just wish to say, before I sit down, that almost everything I have said has already been anticipated by the speech of Deputy Johnson in the other House. He, perhaps, did not put his arguments in the same technical language but they were nothing the worse for that. On the contrary they were probably more intelligible to the ordinary lay-mind, and to the man in the street. I would like to read one or two extracts from his speech, and you will see that he proceeded exactly upon the same lines as I ventured to suggest to you. He said:

"I want to raise an objection to this resolution on quite different grounds. I think it has been badly devised, and I think it may have consequences which the President has not foreseen. If he has foreseen them, and despite that foresight proceeds with the resolution, I think he is going in the direction which he may have grounds to regret at the future time. It seems to me that if we adopt this resolution, as it at present stands, we are seeking by the resolution of one House of the Oireachtas to insert a prohibitory clause in the Constitution. We have not in the Constitution deprived the Oireachtas of the right to legislate on any matter in respect to matrimony. The President is now seeking that we shall pass a resolution instructing the officials of the Oireachtas to refuse to receive a Bill dealing with a legislative matter. Thereby I say we are tying our hands and depriving the Oireachtas of certain authority which it has under the Constitution."

And he goes on to say:—

"We are tying our hands by this form of resolution in respect of what, so far as the Constitution goes, we have a perfect right to do—to deal with a matter of law relating to matrimony. It may be, and I think it is, desirable, that we should not make divorce easy or this complete divorce spoken of possible. I am quite prepared to support that proposition, but I am distinctly against a motion which deprives the Oireachtas of power to legislate in connection with any matter affecting the peace, order and good government of this country."

He goes on to give an illustration showing that if this can be done in regard to this particular matter it can be done with everything else under the Constitution, and he goes on to say—

"It would be amending the Constitution by means of a resolution of either House. That is a bad and wrong course to adopt, and I am sure the majority of the Dáil would not like to see it brought into effect."

That, as I have stated, is the layman's way of expressing the same matter that I, perhaps, have put in a more detailed and technical form, but in effect and result it comes to the same thing. No attempt from any quarter of the House was made, in the Dáil, to answer Deputy Johnson. The sole and only contribution made in the Dáil, in answer to Deputy Johnson, is to be found in these words of the Minister for Finance. This is the way he winds up—

"In the circumstances I believe it was better to have this resolution, although there is a sort of general validity in the argument Deputy Johnson put forward."

That is a cryptic utterance. I do not understand, I confess, what it means. Why it should be better to have the resolution if, in the opinion of the Minister for Finance, Deputy Johnson's argument was sound, is a matter I cannot further explain, but that is the sole and only attempt made, from any quarter of the Dáil, to combat the argument of Deputy Johnson. Of course, I am not in any way seeking to shelter myself under his views. I was only quoting them to show that this matter was already anticipated in the other House. But the conclusion of the whole matter is this, that for the reasons I have stated I am satisfied, and so rule, that this House has no power, either under our Standing Orders or under our Constitution, to pass any such resolution as it has been requested to pass.

For the information of the House, I should like to know what is the constitutional effect of your ruling? Do I take it that as a result the resolution adopted by the other House is inoperative now and hereafter pending legislation on the subject?

AN CATHAOIRLEACH

My view is this, that that resolution was not worth the paper it was written on, and whether it was passed by one or both Houses it was necessarily abortive, being, as I said, contrary to the Constitution and a violation of its principles. The fact that it was passed by one House is no claim as to its validity, because the President pointed out that it required the co-operation of both Houses to make it a valid resolution. That question could never arise. There is nothing whatever in anything I have said, or in the mere fact that this resolution was ruled out of order, to prevent either House or any member of the House from bringing in legislation to deal with this question.

Is the position this, that this House has no right to divest itself of its duties to consider every Private Bill irrespective of its nature and contents, and we have no method, whether we wish or not, to shirk that responsibility?

AN CATHAOIRLEACH

The House has the power, the right and the duty, to provide Standing Orders which give facilities and enforce guarantees in connection with all Private Bills. All I am ruling is that they have no power by resolution or Standing Orders to deprive any portion of the community of the right to tender a Private Bill on any of those matters.

We are bound to consider the co-relative right surely.

AN CATHAOIRLEACH

Certainly, unless and until that power is taken away by legislation.

Might I point out that your ruling does not alter the fact that a Joint Committee reported to both Houses, that this House has got the report, and therefore it is required to decide what action it can take as to the right method of dealing with the question?

AN CATHAOIRLEACH

That is quite right. I understand consideration of that report was adjourned, and it will be open to any Senator to bring it up again on any subsequent sitting of the House. It was adjourned generally for further consideration, and was not disposed of. As Senator Douglas pointed out, it does not affect the question.

I move that the adjourned consideration of the Report of the Joint Committee on Standing Orders on this matter of Private Bills dealing with matrimonial matters be taken up on the next sitting of the House.

I second the motion.

I move as an amendment that the further consideration of this report be postponed until next February, or until the electors have an opportunity of deciding on the question.

I second.

Might the report be read for us now?

AN CATHAOIRLEACH

The report is already circulated. The House, after a short discussion of it, adjourned further consideration, but did not dispose of it. Senator Douglas has called attention to that and has shown that it is still before us.

Might I suggest that the resolution and the amendment be both postponed? I do not quite recollect what the substance of this report is.

AN CATHAOIRLEACH

I am in sympathy with you because I quite agree that it is not easy for the ordinary Senator to carry those things in his head.

I suggest that if Senator Farren allows his amendment to stand over until the House meets next day he may then move it.

I will agree to withdraw my amendment if Senator Brown withdraws his motion.

If Senator Farren's motion is carried, how does the resolution stand in the interval?

AN CATHAOIRLEACH

There is no report of this or any other House that can tie the hands of the Oireachtas. The Government can bring in a Bill to-morrow to prohibit divorce a vinculo.

What becomes of the cases posted up in the hall if Senator Farren's resolution is carried?

If Senator Farren's motion were carried, the position is that things would remain as they were, that is: Standing Order No. 1 would be the only Standing Order governing a Bill dealing with matrimonial matters. There would be no restriction, and every Bill coming in under Standing Order No. 1 would have to go before the House. The House would not be obliged to pass it. The Committee sent in a report to both Houses giving effect to it, but not expressing any opinion. That is the report which the Dáil considered, and they passed a resolution which has come to us in the form of a Message. We postponed consideration of the report. Senator Farren thinks that consideration of it should be left over to February. If you postpone it we stand as we are.

Whether consideration of the Report is postponed or not, will we not have to consider any legislation on the matter that is introduced in the other House?

AN CATHAOIRLEACH

Certainly.

For that reason I think we should not burke discussion of the report. There is no use postponing these things, even if they are disagreeable. I do not think anything is gained by doing so. At present the position is extremely unsatisfactory, and for that reason I think it would be as well to consider the matter. It may not be in the form of a Bill, but in one form or another in the near future.

Without consideration of the report, I think there are no Standing Orders governing this particular question.

AN CATHAOIRLEACH

That is not quite accurate. Under the existing Standing Orders dealing with Private Bills, a Private Bill for the purpose of obtaining divorce a vinculo can be introduced to-morrow and can go through all stages so long as the other House passes it. There is nothing in the Standing Orders to prevent that. There are no special facilities given and no special guarantees provided, but under the existing Standing Orders any Bill of that kind can be put through all stages and passed into law if the other House is satisfied to do it. Will I put your amendment, Senator Farren?

Yes. The Committee of Standing Orders considered this matter for a considerable period and decided to send down a report. That report was discussed and a decision was to be come to on the whole question. It was understood that no facilities of any kind would be given pending a decision of both Houses on the report. In view of what has transpired here to-day, and the necessity of the Government immediately taking steps to introduce legislation and deal with this question in a manner in which the great bulk of the people of this country want it to be dealt with, I propose that consideration of the matter be postponed for twelve months. That means that facilities will never be given. Otherwise you will have people going to the trouble and expense of promoting Private Bills which will never be passed. This House may do what it likes, but every Private Bill must pass through the Dáil also, so that it will be only putting people to the trouble and expense of promoting Bills which will never be passed. The people of this country have made up their minds on this question. It is to save trouble and expense that I suggest that consideration of the report should be postponed for twelve months.

Senator Farren's statement is quite accurate except in one point. He said that it was understood no facilities would be given in this matter. It is not a matter of giving facilities. The Examiner who is in charge of these Bills reported to the Committee that if no other orders were passed he would be obliged to report that the Bills complied with Standing Order No. 1. It was on that statement that the Committee sent in a report. I am afraid the Orders as they stand will place the obligation on the Committee unless the promoters withdraw.

Senator Farren has stated that he speaks on this question for the people of this country, and that the people have made up their minds on it. I want to know what they have made up their minds about.

AN CATHAOIRLEACH

I think we cannot go into that.

So far as I can judge the situation, I think the Senator was not quite correct in his estimate. I imagine that if he postpones consideration of this question for another twelve months that will not prevent people introducing divorce Bills if they wish to do so. These Bills will eventually come before the Oireachtas. Whether they are passed into law or not is another question. This is one of those deep questions in which the whole country takes an absorbing interest, and I do not think we are behaving properly, or consulting our own dignity, if we postpone this matter indefinitely. I think Senator Brown's proposal is a little too soon. Maybe we could consider the matter amongst ourselves and then discuss it in public. I would be inclined to support Senator Brown's proposal if he would put the matter off for a month, and we could then discuss it in Committee.

AN CATHAOIRLEACH

That is to say, that the report be taken into consideration not earlier than a month.

The first sitting after Easter. It is quite obvious that we ought to consider this report as, from what Senators have said, they do not understand the situation in which both Houses are now with reference to the Standing Orders. My object in suggesting consideration of it on the first day that the House meets was to get it before us as soon as possible. I am quite willing that it should be adjourned for some weeks, and if the House agrees I will amend the resolution and make it the first sitting after Easter.

I would be inclined alternatively to suggest that we should agree at the next meeting to fix a date, as the matter will have been thought over in the meantime.

AN CATHAOIRLEACH

That does not require any resolution, if it is the general understanding that on the next occasion we meet we would take up this question and fix a date for further consideration of the report.