Seanad Éireann debate -
Wednesday, 9 Feb 1927

Vol. 8 No. 6

PRIVATE BUSINESS. - CONSTITUTION (AMENDMENT NO. 4) BILL, 1926—COMMITTEE.

Mr. BROWN

I move:

In Section 1 to delete in line 17 the words "and is hereby amended" and to substitute therefor the words "amended as from the date of the coming into operation of this Act."

This is purely a drafting amendment. As the Bill stands at present it reads: "The Constitution shall be and is hereby amended by the deletion from Article 28 thereof of the words ‘four years' and the insertion in that Article of the words ‘six years.'" Then sub-section (2) of Section 2 provides that "This Act shall come into operation immediately after the dissolution of the Oireachtas occurring next after the passing of this Act." The objection to the wording of Clause 1 is that it practically leaves the Constitution hung up for the interval between the passing of the Bill and the date on which it comes into operation, which is determined by the date of the General Election.

CATHAOIRLEACH

You leave out "and is hereby"?

Mr. BROWN

Yes; the section will then read "The Constitution shall be amended as from the date of the coming into operation of this Act by the deletion from Article 28 thereof——"

Mr. O'HIGGINS

I consulted the Attorney-General and the Parliamentary draftsman in the matter and having done so I do not feel inclined to accept the amendment. They have pointed out to me that Section 2 of the Bill provides that the Act shall not come into operation until immediately after the dissolution of the Oireachtas and that Section 1 of the Act must be construed accordingly. In other words that you cannot take Section 1 of the Act as a thing apart from the Act as a whole. The use of the expression "and is hereby amended" is a pretty well-known form both in our own statutes and in a great many statutes passed by the British Parliament.

CATHAOIRLEACH

Do you mean to say that this is a common form in cases where the operation of an Act is fixed for an uncertain date, a future date?

Mr. O'HIGGINS

I could give you two or three examples of that kind of thing occurring in our own statutes, and I think I could give you at least two examples from Acts passed by the British Parliament. The Local Government Act of 1898 is one.

CATHAOIRLEACH

What is the object of putting in those words "and is hereby"?

Mr. O'HIGGINS

If you simply say that the Constitution shall be amended you may be merely passing legislation making it mandatory.

CATHAOIRLEACH

Oh no—"shall be amended from the date of the coming into operation of the Act." That is the amendment proposed.

Mr. O'HIGGINS

The objection to the amendment would be on the ground stated, that that form of words has been adopted in a great many cases since the establishment of the Oireachtas, and, I submit, has been adopted in a great many statutes of the British Parliament also. But to seem to agree to the view that one section of an Act can be taken separately and can have effect, apart from the following sections—apart, for instance, from the section stating on what date the Act is to become operative—would be a very serious thing in view of the fact that there are probably not many Bills of ours in which this form of words does not occur in one section or another.

CATHAOIRLEACH

Is not this a very serious matter really? I quite understand that the Bill would not come into operation until this uncertain date, but you have got the distinct legislation passed that it is hereby amended. Does that not there and then amend the Constitution, although the effect of the amendment would not be felt until the Bill comes into operation?

Mr. O'HIGGINS

But Section I, I submit, is not distinct legislation as apart from Section 2, and "hereby," I should say, refers to the Act as a whole and not to Section 1 of the Act.

CATHAOIRLEACH

But what is the necessity for raising all that doubt?

Mr. O'HIGGINS

It is because I do not agree that there is any, and the draftsman does not agree that there is any.

CATHAOIRLEACH

As far as I am concerned I will leave it with the draftsman.

Mr. BROWN

It is obvious that the Minister has looked into this matter very carefully and has consulted with high authority, the Attorney-General and the draftsman, who is one of the most experienced and one of the ablest draftsmen in the world. I suggest that this matter stand over until the Report Stage, and I myself will see the Attorney-General and the draftsman, and see the precedents to which the Minister has referred.

Mr. O'HIGGINS

I am quite agreeable.

EARL of KERRY

Might I make one suggestion, that the section at the end should be telescoped into the other? The Minister would then have both the sections in one.

Mr. GUINNESS

Would you give us your views, sir?

CATHAOIRLEACH

The opinion of a very eminent constitutional lawyer and my own opinion is that when this Bill passes the Constitution is there and then amended, but the amendment does not come into operation until the event fixed later on occurs. I cannot for the life of me see why six years are put in at all unless it is intended to suspend the Constitution from the date on which the Bill passes, because if that is not intended those words are absolutely unnecessary, and a simple statement that the Constitution shall be amended as from the date of the coming into operation of this Bill would settle the whole thing. Why this amendment is rejected I do not know. It rather suggests to me that there may be some desire to secure the suspension of the Constitution at the date of the passing of the Bill. I do not know. However, we had better let it stand until the Report Stage.

Sir THOMAS ESMONDE

Apart from that, I think this is a praiseworthy Bill. I have spent a good deal of time denouncing the other, but I think this a very good one. A period of four years is much too short for practical purposes, and I think that the Government are doing very well in lengthening the term.

Consideration of amendment deferred to Report Stage.

Bill put through Committee without amendment.

Bill reported.