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Seanad Éireann debate -
Thursday, 7 Apr 1927

Vol. 8 No. 17

PUBLIC BUSINESS. - CONSTITUTION (AMENDMENT No. 5) BILL, 1926—COMMITTEE STAGE.

The Seanad went into Committee.
Clause 1 ordered to stand part of the Bill.

I move:—

New section. Before Section 2 to insert a new section as follows:—

"The Constitution shall be and is hereby amended by the deletion from Article 52 thereof of the word ‘Dáil' and the insertion in that Article of the word ‘Oireachtas' in lieu of the word so deleted."

New section. After the preceding section to insert a new section as follows:—

"The Constitution shall be and is hereby amended by the deletion from Article 58 thereof of the word ‘Dáil' and the insertion in that Article of the word ‘Oireachtas' in lieu of the word so deleted."

Members of the Seanad are familiar with these amendments. They simply propose to make Senators eligible for Executive office. Senators are also familiar with the course of the Bill up to the present stage. It was referred to a Special Committee of this House, and the result of that reference was that the Committee advised that further consideration be postponed, and that the Dáil be invited to join in setting up a Joint Committee to deal with the measure. The Dáil, in its wisdom, or unwisdom, saw fit not to accept that invitation, and the Bill is now left to us to take up its consideration at the point where we left off when the Special Committee of this House was appointed. The Minister for Justice, in submitting the Message to the Dáil, reviewed the whole position. At the outset he referred to the framers of the Constitution, and to the particular clause in the Constitution setting up a Legislature in this country. He said that it was recognised that there should be some effective liaison between the two Houses. He stated that in other countries, in the Dominions and elsewhere, where members of the Second Chamber were eligible for executive office, that was the way they proceeded to establish an effective liaison between the two Houses, but that as the conditions of this country were different and changing the framers of the Constitution thought it better to bring about the same result here by empowering Ministers who were chosen for executive office from members of the Dáil to follow legislative measures sent to the Second Chamber and to help it to arrive at a decision by giving them every possible information that was given to the other House on these measures.

In answer to that I must say that there is also a provision in the Constitution which enables the Oireachtas within eight years to amend the Constitution; after that time it can only be amended by referendum. That, no doubt, is a very wise provision, but it indicated certain doubts in the minds of the framers of the Constitution, no matter what their prescience might be, or how machinery of that sort would work out. Therefore they introduced this clause in the Constitution. It is the result of the application of this machinery to our legislative measures and our procedure that we ourselves would be in a position, within eight years, to remedy any defects that were discovered in the Constitution for any reason. Not very long ago members of the Dáil and the Executive Council saw fit to introduce amendments to the Constitution. Their conception of the extent to which the Constitution could be strained in any direction which they desired to go was indicated by a Bill brought in here which, if it were passed in the form in which it was presented to this House, would result in the anomaly of a member having the full right and power to sit in the Dáil, to vote, act and affect legislation in so far as his vote could affect it, without having a constituency—being responsible to no constituency, a free-lance, in other words.

If the Minister sets up the argument that it was never contemplated by the framers of the Constitution that Senators should never reach Executive office, I am sure that argument could be met by the counter-argument that the framers of the Constitution never visualised or anticipated that such an anomalous position would arise as that, by any subterfuge or otherwise, a member could act in the Dáil without being responsible to any constituency and remain in that anomalous position for a certain number of years. Yet this Executive Council, which is so punctilious in other matters, gave their sanction to that proposal, and were it not for the superior acumen and higher standards of competence that exist here at times, that anomaly would have passed into law and would exist to-day.

The Minister, when dealing with the claim made by the Seanad as to infringement of its rights, asked what rights? My conception of the infringement is simply this: That under the Bill as it stands there is power to narrow down the margin of appointment of extern Ministers, thereby encroaching on the position of Senators and others outside the Dáil. There is power given to increase the number of Executive Ministers, but the privilege of selection is confined to members of the Dáil only, and no compensating privilege is given to Senators. The Minister also said that we had no further right to a grievance than Paddy Murphy of Skibbereen. That is so, but if Paddy Murphy of Skibbereen were consulted about the Bill, and if we were attacked as we were afterwards attacked, it might be found he would be a very indignant and vocal citizen. We were not consulted, and when we sensed the insidiousness of the Bill we rose up here unanimously and objected to the measure. Notwithstanding our unanimity here we were treated in a very discourteous way by the Dáil, and in his presentation of the case the Minister's attitude was most disappointing to this House, because when the amendments were first considered the Minister was very favourable and agreeable to our proposals. I think it was his own suggestion that it should be referred to a Special Committee of the House.

In the Special Committee I think he suggested that the matter should go before the Joint Committee. Finally we agreed to send this Message to the other House:—

"That in the opinion of the Seanad it is expedient that a Joint Committee of both Houses, consisting of seven members of the Seanad and seven members of the Dáil, be appointed to consider and report upon the advisability of amending the Articles of the Constitution which prevent members of the Seanad being appointed members of the Executive Council."

With reference to that, the Minister's words were these:—

"We object to the setting of this resolution; we object to its bargaining complexion. We object to the underlying threat, that, unless this resolution is passed, and, presumably, unless those who represent the Dáil on the proposed committee agree that Senators should be eligible for membership of the Executive Council, then the Bill that is before the Seanad will not be passed by the Seanad." ... "The second objection is on the merits. To accept this proposal to take part in the proceedings of a Joint Committee, to consider the alteration of Article 55 of the Constitution, so that Senators may be eligible for membership of the Executive Council is, in effect, equivalent to giving a Second Reading to the proposal that Senators should be eligible for membership of the Executive Council. Are we sure they should?"

To anyone understanding ordinarily the value and force of words in the English language, I do not know how the Minister could have read in all those underlying threats. I can find no threat at all in the position arrived at by the Special Committee and presented to this House. There may have been individual views expressed by members of the Committee as to what course might be taken in special circumstances, but the Speaker in the Dáil has ruled they are not to be affected by speeches, but only by the words and the text of the Message sent to that House. The Minister seems to have based his references on the individual opinion of members either in the Seanad here or in the Special Committee, not on the text of the Message. His references and remarks were not justified in any way by the text of the Message sent by this House to the Dáil. That is the only matter with which the Dáil is concerned and to which they are confined. He also referred to collective responsibility as a reason why Senators should not be eligible for Executive office. Inasmuch as they might not have to meet their constituents, seek re-election within a certain period, or would not have to resign in the event of a Government defeat, his insinuation is that they would not give a sincere, genuine, honest consideration to Executive matters, to Government policy or otherwise. I do not know whether we have a higher sense of our duty to the State and to our country or whether we have a lower position than members of the Dáil or Ministry. If matters of high State importance and of national importance are to be considered in an atmosphere outside that of all extraneous influences or considerations, or without any influence being brought to bear upon them by any section of the community, then I think the argument is entirely in favour of including members of the Seanad, because we can bring a more impartial and a more independent frame of mind to bear on those matters inasmuch as we are taking lesser risks. We can address ourselves more impartially to the subject in hand even than members of the Dáil or of the present Ministry, who themselves are liable to be thrown out of office or not returned at the next election. The Minister said:

"The Bill was referred to a Special Committee of the Seanad, which I attended. The proposal that emerged from that Special Committee was that no further progress should be made with the Bill that was passed here and sent to the Seanad; that they should mark time on the Bill; that they should pass a resolution inviting the Dáil to take part in the proceedings of a Joint Committee.... The Executive Council objects to the bargaining complexion of this resolution."

Now I have read already the resolution sent by this House to the Dáil. There his reiterative references to bargaining and threats cannot be read, no matter how you strain the English language, into that resolution or any part of it.

"The Seanad at present consists of sixty members. Thirty-one of those members were elected; twenty-seven were nominated; two were co-opted.

"But none of these persons, whether nominated, co-opted, or elected, were nominated, co-opted or elected with a view to their being anything else than members of a Second Chamber—a Second Chamber with powers of revision, powers of criticism, powers of suggestion, and even powers—maximum powers—of delay."

We have, I think, further powers than that; we have powers of initiating Bills here. Bills go through all their stages here, and if the Dáil see fit to amend them they have the privilege to make those Bills their own as if they were initiated in the Dáil.

Coming to the main point of these amendments I assert that in practice the proceedings of this Chamber are hampered by want of sufficient knowledge of legislation that is in prospect. If the House is not kept in sufficient touch with all the information naturally due to it as to approaching legislative measures, and I think that has been the experience of the Seanad, then I say the effective liaison between the two Houses has not been found to work out in practice. At any rate, any argument put forward by the Minister as to why Senators are not eligible breaks down when we apply world-wide experience to the matter. I will read to you Deputy Major Cooper's remarks with regard to that:

"Now there is no doubt whatever that the present position of the Seanad is unique and, I think, anomalous. It is not in the same position as any other Second Chamber in the world that I know of. Ministers without portfolio sit in the Canadian Senate. Ministers sit in the Senate of New Zealand; the Vice-President of the Executive Council and the Minister for Home Intelligence sit in the Senate of Australia. In France the Prime Minister (Monsieur Poincare), is a member of the Senate. In every Second Chamber in the world, except that of the United States, where the Executive is entirely divorced from the Legislature, and where members of the Executive are not members of either House, members are eligible for office, and by the fact that there are Ministers in those particular Chambers they derive a great advantage, because they get guidance from the other House—of which the Seanad has very often stood in need."

In addition to that I may say that in South Africa in the Constitution there is an element of perpetual nomination. The nominated element of this House will fade out by fluxion of time; after another few years we will all be popularly elected in this House. I should say we hope to be. In South Africa, at any rate, this nominated element, which the Minister, in the other House, pressed as being essentially a point which renders us ineligible in having the same responsibility as members of the Dáil, is looked upon as a virtue and is installed there as a permanent element of their Constitution. The Minister also said we were not a democratic institution, and that we were not founded on a democratic basis, and he said:

"Some time ago one of our daily papers committed itself to the statement that people were apt to forget that the Seanad was even in a wider sense than the Dáil a democratically elected Chamber. I have the exact quotation here,"

said the Minister, and he read it as follows:

"‘There is too great a tendency to forget that the Seanad is even in a wider sense than the Dáil a popularly elected body,'"

and he continued:

"that statement is, of course, blatantly and demonstratively untrue."

I said "demonstrably."

Oh, I suppose it is a printer's error, but I am reading from the official report, and it has the word "demonstratively." At any rate, it is one or other and both terms seem to signify the same in the mind of the Minister. Now, how were we nominated?——

Would the Senator read on a little?

I will read the whole speech if the Minister likes. At any rate he continued:

"The ‘Irish Independent'—I have not got the date of the issue, but I can give it to the Deputy subsequently—says there are 27 members of the Seanad nominated, 2 co-opted and 31 elected. Even with regard to the 31 elected it is decidedly an overstatement to say that they possess in a wider sense than the Dáil a popular mandate. For whereas the Senator who, in those elections, secured the highest number of votes, secured the total vote of 14,000 in the entire State, there are many members of the Dáil who secured in a single constituency very many more votes. There are members in the Dáil who secured upwards of 20,000 votes in a single constituency."

The Senator might stop now.

The Minister forgot to mention that these votes were given on an entirely restricted franchise, where no one under 30 years of age had a vote.

Surely that will be another point against the newspaper statement.

I do not care about the newspaper statement, but I am entitled to argue that if it was on a franchise where those of 21 years of age had a vote, we would secure more votes. But that is only a small point. It must be remembered how we were nominated or elected. It was by a democratic, revolutionary Dáil and a democratic revolutionary President who had the power of nomination that we were elected in the case of 50 per cent. of the Seanad. Is not this impeachment therefore by the Minister an impeachment of the Dáil and of the President and of an ultra democratic and revolutionary Dáil and President? It was this revolutionary President who nominated men here, but, according to the Minister's statement, we are not even democratic, although the Dáil in its judgment elected over 50 per cent. of the members of this House, and the whole wide range of the Free State elected another section of the House on an absolutely democratic standard and from a democratic point of view. We are in reality democrats of the democrats, the elect of the elected, the nominated of the nominators. A Senator reminds me here that we had 26 counties as the constituency in the Senatorial elections, whereas you have only one or less forming a single constituency for the Dáil.

Now I pass from the attitude of the Minister to that of other members of the Dáil. Deputy Cooper asked why did not the Minister, instead of asking the Dáil to give a flat negative to the Seanad message, not suggest an amendment to the terms of reference. "It would be possible," he said, "to do so. Deputy Johnson, more far-seeing than myself, suggested the lines on which it could be done, but the Government preferred to offer a flat negative to the unanimous resolution of the Seanad. Let there be no mistake about it that every party in the Seanad concurred in the resolution, including the Labour Party."

Now let us see what Deputy Johnson had to say. Everybody knows that what Deputy Johnson says has weight both inside and outside the Oireachtas. Deputy Johnson referred to the same matter and said:

"Perhaps this is merely an excuse—I do not know—but I make the suggestion that instead of repelling this proposal from the Seanad, we should offer as an alternative suggestion that a joint committee be appointed to consider whether any improvement can be made in the procedure and practice governing the relations between the two Houses and between the Ministry and the Seanad which would facilitate the Seanad in carrying out its work of legislation."

And Deputy Johnson further stated:

"I think, nevertheless, that there is something required to be done to improve the business methods of the Seanad as of the Dáil."

I thoroughly agree with Deputy Johnson and other members of the Dáil, and I think the experience of this House has been and is that there is not the clear liaison between the two Houses which was contemplated by the framers of the Constitution, and I think it is as important to remedy that defect in the Constitution as it is to remedy defects for which Bills are brought in here. I think it is a regrettable thing that time and again we have been asked here under stress of pressure to rush through Bills without being able to get a proper conception of the different sections of these Bills. Under appeals from the Government we have set aside our procedure and again and again suspended our Standing Orders for their convenience. We have allowed Bills to be rushed through without proper time for their discussion and calm deliberation. I think, considering the attitude of this House and what we have always done to facilitate the Government in every way, now, when we bring forward a very reasonable proposal of this sort, calling upon the Government in ordinary courtesy and in the interests of legislation generally, and certainly with the object of having better communication and intercommunication between both Houses upon important matters, and making a suggestion as to how to overcome these difficulties, namely, that the President of the Executive Council should have the option of selecting as one of his Ministers a member of this House, and when we are only putting that forward for consideration, a joint committee ought to be asked to go into the whole matter. I speak for the majority of this House when I say that I think the message which we sent to the Dáil did not get the consideration it deserved, and that the attitude taken up upon it was not such as should be accepted by the Seanad.

I find myself compelled to support the amendment proposed by Senator Kenny. By doing so I cannot claim any extraordinary enthusiasm for the proposal that Senators should be members of the Executive Council. Still the proposed Bill cuts so much across the principle and provisions of the Constitution that I think a drastic amendment of this nature is necessary to obtain the attention which the Bill merits. When this Bill was introduced into the Dáil, whether the Minister forgot altogether that the Constitution as it stood made provision for members of the Seanad being Ministers, and made provision for vocational councils of which the nominated head should be a Minister, I cannot say. At all events, when the Bill was discussed in the Dáil, it was considered altogether from the point of view of the Dáil, irrespective of the Seanad and irrespective largely of the provisions of the Constitution. The Constitution provides for 12 members to be Ministers, of whom not less than five, or more than seven, shall be members of the Executive Council. The Constitution further provides that the total number of Ministers shall be 12. It will be observed that the Constitution, as formulated, made arrangements whereby five Ministers should be what are called extern Ministers. The Constitution made provision that any member, practically, of An Saorstát could be one of these extern Ministers, but the Bill we are now discussing changes all that and wishes to provide that a future President shall have it in his power to nominate 12 Executive Ministers, thereby vitiating and rendering nugatory Article 56 of the Constitution, which provides for vocational councils, and Article 55, which provides for extern Ministers.

I am not entering into a discussion. I support Senator Kenny in what he said as to the abrupt manner in which our request for a Joint Committee of both Houses to be set up to discuss this very important constitutional question, was treated—that is, the treatment it received from the Minister. I am not making the least attempt to traverse what his views may be, but this I think, that it is a proposal so far away from the provisions of the Constitution that it seems to suggest some innate semi-concealed viciousness which one feels ought to be prevented. Has the extern Minister so failed that he should be put a stop to? As far as I can read, when the extern Minister proposal was first suggested in the Dáil, the President of the Executive Council laid great stress upon the importance of such a Minister. I submit to the House that such a Bill as this, doing away in such a short period with the extern Minister, is a proposal to which we should not agree. That is one of the reasons why, I think, that the amendment should be considered. The Minister spoke about Paddy Murphy of Skibbereen. I am largely concerned with Paddy Murphy of Skibbereen. Paddy Murphy of Skibbereen may have great administrative powers, and surely if Paddy Murphy of Skibbereen or Ban try had such powers it is a pity that he should be denied to the State as this Bill suggests.

He should stand at a General Election.

The Minister says he should stand at a General Election. The framers of the Constitution thought otherwise, and I stand in this case for the framers of the Constitution. I do not think that the Constitution has failed, and I do not think that the time has yet come to put into the hands of the President the creation of a Cabinet which, after all, must eventually form itself into a Cabinet within a Cabinet, because you can hardly picture twelve Ministers in this country of ours being an Executive Council. It will be only three or four Ministers, and the rest of the Cabinet will be the lesser lights of the greater constellation.

It seems to me that the amendment proposed by Senator Kenny does not meet the points on which I really laid stress. I for one am not at all anxious, though it may be wise, that a member of the Seanad should be a member of the Executive Council, but I am more than anxious that a member of this Seanad should at all events be a member of the Ministry, for the purpose of liaison, for the purpose of keeping us in close touch with all that is happening in the other House, and for the purpose of more clearly indicating to us the line of legislation and helping in our debates with all the details necessary for adequate consideration of the Seanad. We cannot say now, unless we follow line by line and figure by figure the long debate in the Dáil, what the line of legislation is, nor do I think it would be wise for us as a second Chamber to read everything which they say in the Dáil. After all, we bring to bear on the Bills that come to us a new line of thought, and a new train of reasoning. For that purpose it would be well for us, sometimes, if we could shut out from our minds the arguments used in support of a Bill or against a Bill in the other House. I think that the close and serious reading of those debates in the Dáil would not be to our advantage, and when we consider those various points, the Minister who had charge of the Bill, who is in the confidence of the Dáil, the Minister who is concerned with the framing of the Bill, who knows all the details, would be the person to advise us, the person to tell us all the reasons for legislation and the person on whose advice we could act with greater dependence in legislation. I do not think that I need say any more. I have been quite long enough, and I apologise for the length at which I have detained the House, but if this amendment is carried, as I hope it will be, it will, at all events, I think, prevent the doing away with the right of a Senator or of any other person in the State to become a member of the Executive Council. Judging from the attitude of Ministers towards our modest proposal for a Joint Council or Session, that they would accept such an amendment as this to their Bill, no one could for a moment imagine. Therefore, merely for the purpose of preventing a Bill which, I think, is a gross infringement of the Constitution and a grave infringement of the rights of this House, I second the amendment.

We have had this subject before us on several occasions and I do not propose to do more than, as briefly as I can, to state my view of this amendment. I have already expressed my strong feeling that there should be in this House a representative of the Government. But I think that is irrelevant on this subject, as I do not think that matter could be arranged at the present time. Personally, I think that if the number of Ministers in the Executive Council exceeds the five to seven members now provided, the Dáil should have power, if it so desires, to choose a Senator. The only question is not as to whether there should or should not be a Senator in the Executive Council. It should vary according to the circumstances, but it is a simple question of whether the Dáil should have that power. I think it should. I do not think that I should support this amendment.

I am strongly of opinion that only one subject should be dealt with in the Constitution (Amendment No. 5) Bill, 1926. The fact that the Senator who moved this amendment has to move another amendment to alter the Preamble shows clearly that, by doing so, he was introducing two subjects. He also proposes to amend the Short Title.

I think certainly it would be a mistake to pass this amendment, and for that reason I shall vote against it. But if Senator Kenny will introduce a Bill, or if other Senators will join together and introduce a Bill to provide that where the members of the Executive Council exceed seven, then there should be an option to choose a member of the Senate, I should be glad to support such a Bill and to help in the drafting of it. The proper thing for us to do would be to join in promoting such a Bill and to discuss it in this House without regard to the subjects that are being discussed here now. Senator Bennett's arguments were rather against the Bill than for this amendment. There is a great deal to be said for that. He feels that this Bill abolishes the extern Ministers. I think the position is that this Bill leaves it optional to the Dáil as to the number of members not exceeding twelve forming the Executive Council. I hope the House will not accept the amendment not because of any objections that I have to it, but because it is a mistake to introduce two subjects into a constitutional amendment like this.

In the matter of this Bill I want to say if I have done the Seanad less than justice I regret that very much. On the other hand, if the Seanad has done me less than justice I am prepared to suffer under that rather than to be putting myself and the Seanad to the trouble of ploughing through the proceedings of the Special Committee of this House, which was set up in the same way as, let us say, Senator Kenny parsed my speech in the Dáil. I believe that, perhaps, I might establish that my attitude with regard to the suggestion of the eligibility of Senators for membership of the Executive Council throughout has been this—that I dislike it being raised as a side wind to this particular Bill; that if this Bill were to pass unamended I was quite prepared to give my advice, for what it is worth, to the Executive Council, that it was a matter that might be discussed by a Joint Committee of both Houses. I did indicate that I myself saw a certain objection to Senators being members of the Executive Council. I see them still very clearly. But I was quite prepared to have the matter considered by a Joint Committee of the Dáil and Seanad provided that the issue was not raised in connection with this particular Bill.

I suggested in the Dáil that there was a suggestion of bargaining about the hanging up of this Bill, and the sending on to the Dáil of a resolution inviting them to set up such a joint Committee. Senator Kenny says that in taking that view I was straining the King's English. Again, if I have strained the King's English I am sorry, but I was adverting not so much to the King's English as to the resolution that came on to the Dáil, as to the action that was taken and to the attitude that I believe was implicit in that action The Bill came on here. It was introduced and got a Second Reading. It was referred to a Special Committee. That Special Committee advised the Seanad to hang up the Bill, to take no further action on it, and it invited the Dáil to join with them in a Committee to consider the desirability of Senators being eligible for membership of the Executive Council.

I do think that underlying that there was a suggestion that the attitude of the Seanad to this Bill would be determined by the result of that Joint Committee when, and if, set up.

SENATORS

No.

If I am wrong I am glad to hear it, for it means the Seanad is prepared to consider this Bill on its merits and not on the merits or demerits of the proposal that Senators should become eligible for membership of the Executive Council. I was a little bewildered when Senator Westropp Bennett was speaking, because he described this Bill as a flagrant violation of the Constitution. It is a Bill to amend the Constitution. It is a question of language as to whether you regard a Bill to amend the Constitution as a flagrant violation of the Constitution. It is a Bill which, if it becomes an Act, will be part of the Constitution, and really that is the only comment I can make upon the whole argument of Senator Bennett that the Bill is unconstitutional. It is a proposal to amend the Constitution, and I gave reasons as best I could for that proposal on the Second Reading. I said we had now less enthusiasm for the conception of the extern Minister than we had when the Constitution was being enacted. It was frankly an experiment. We hoped it was an experiment which would mitigate the rigidity of the Party system, and that it would enable certain matters arising in certain spheres of administration to be discussed and considered in a non-Party way.

But there is an aspect of the matter which, perhaps, is overlooked or not sufficiently stressed, and that is that most of the major departmental proposals involve a question of finance. Fisheries, Education, Local Government, Posts and Telegraphs, radiate into the sphere of collective responsibility on that question of £ s.d. Let us take, as a concrete example, the recent action of the Minister for Agriculture with regard to creameries. He could not on that matter stand singly responsible. The whole essence of the project was the question of finance. On that question the Executive Council had to sit in judgment on the proposal and form the best opinion they could about it. It is so on almost every matter, and consequently we have come to the conclusion that this idea of the single responsibility of the extern Minister is a matter of theory rather than fact and practice. It cannot become a reality because of the financial factor. While it is not proposed absolutely to abolish it, the Oireachtas is asked to say that each succeeding President on his election should have discretionary elasticity as to the number of members he will call into his Executive Council, and as to the extent of the field of entire administration that he will make a matter of collective responsibility. I consider that an eminently reasonable proposal. It does not close the door to the idea of an extern Minister, but leaves to each President, facing his own situation as he finds it after the General Election, and his own election, to say how many members he will have in the Executive Council, and how much of the field of administration he will make subject to collective responsibility. I think that is an eminently reasonable proposal. I do not think it is a proposal that ought to be complicated with this other question as to whether or not it is desirable that members of this House should be eligible for membership of the Executive Council.

That may be, and indeed is, an important question. It is a question on which I have my own definite view, which I think I need not elaborate here and now. I do not deny the importance of the question, but I contend that it is a separate question and that the subject matter of this Bill ought not to be complicated by the raising of that issue. It is true that Senator Kenny and Senator Bennett justified their amendment by pointing to the fact that if you abolish extern Ministers, that inasmuch as Senators were, let us say, theoretically eligible to be extern Ministers, then to that extent the rights of Senators are involved. My reply is that they are involved equally with the rights of every adult citizen of the State, for there is no pointer in the wording of the Constitution to Senators any more than to any private citizen up and down the country in this matter of eligibility for the position of extern Ministers.

Like Nelson Pillar and Mr. de Valera, I stand where I always stood in this matter. I am still prepared as a distinct question, to see this matter of the desirability of Senators being eligible for the Executive Council discussed by a Joint Committee, but I want this Bill through as it stands, and I think it should go through as it stands because a General Election is imminent. My contention is that the President elected by the Dáil after that General Election ought not to be limited to a membership of seven for his Executive Council, and ought not to be placed in the position that whether he likes it or not he must leave a substantial portion of the field of administration outside the sphere of collective responsibility. I believe that to tie his hands in that way would not be wise and would not be in the public interest. I believe he should have this discretionary elasticity which the Bill seeks to give, and thereafter, either by a Private Bill introduced here or by a resolution of this House, the other matter can be discussed, and I would not object to it being discussed except in connection with this Bill.

The door would be locked then.

You mean the question of the Extern Ministers would be gone?

If you fill up the 12 you have no room for anybody else.

No doubt if it is desirable to amend it, it could be amended, but I would need a lot of convincing that it is desirable to make Senators eligible for membership of the Executive Council. Any Senator could stand at the General Election who feels that he has ministerial aspirations. Article 16 of the Constitution says members of one House may stand for election in another, and need not resign their seat if they fail to pull off the chance. Article 16 of the Constitution says:—

"No person may be at the same time a member both of Dáil Eireann and of Seanad Eireann, and if any person who is already a member of either House is elected to be a member of the other House, he shall forthwith be deemed to have vacated his first seat."

Now there is a great chance for someone. The only other thing I wish to say is that Senators were elected, co-opted or nominated to this House to be Senators, to be members of a revising Chamber, and they were not elected, co-opted or nominated, as the case may be, to do anything other than that. The question of an effective liaison between the Executive Council and the Seanad is another matter. I myself cannot see that there could be any more effective liaison than the daily attendance here, in connection with legislation, of members of the Executive Council to answer any question that may arise. Senators complain regarding the lack of information about forthcoming legislation. They get as much information as members of the Dáil. They are certainly entitled to it, and if they ask for it I cannot conceive its being denied to them, but I do not think myself that persons ought to aspire to ministerial office who have not direct responsibility to the people, who have not been elected by the people, at any rate not elected for that purpose or with any view of the possibility of that, and who have not the feeling that at any time they may have to answer politically to the people. Senator Kenny enlarged on the advantage that they could bring to bear by way of a calmer judgment on matters of legislation. It seems to me his argument in that respect was one for the abolition of representative Government. If the calmer judgment depends on a feeling of entire independence of the people then there is a great deal to be said for the revolt against democracy that has taken place in some countries during the last seven or ten years.

If this amendment were pressed to a division I should be obliged to vote against it, and I should be very sorry to be put in that position, because with the principle that underlies the amendment I am entirely in agreement. I think the President should have the right to nominate, and the Dáil should have the right to approve of the nomination of a member of this House to the Executive Council. I feel this is not, at the moment, a matter of principle, but a matter of procedure. I do not think that this is the best way of doing what we would like to do. It is not the best way of getting the legislation that we desire to get. We were not very well treated in the matter of the message that we sent to the Dáil. I am happy to think that the situation that arose was the result of a misunderstanding. I am sure that that is so, but what I feel now is that an amendment to the present Bill is not the best way of getting what we want. It is not even the way of getting the best discussion on the question as to what we want, and I think, for the sake of our own dignity, that this amendment should be withdrawn, and that this whole question involves a number of issues and a number of considerations which have not been brought before this House on this amendment, and could not very well be brought before it. There are other weighty considerations that ought to, be considered by us before we adopt a drastic amendment of this kind. I, therefore, suggest that the best course for the House to adopt would be to allow this amendment to be withdrawn and allow this Bill to go through and then let the matter come before us in a Bill which could be introduced in our own House after due consideration.

I am in general agreement with Senator Brown in regard to the procedure. I do not think that this amendment would be considered on its merits elsewhere if it is introduced in the present Bill. I think the Minister might not have rather flippantly suggested that the amendments were brought forward because of the ministerial aspirations of any member of this House. I do not think if Senators have ministerial aspirations that they are going to be realised in the near future, but it certainly is not the driving motive behind these amendments. We are concerned with an alteration of the Constitution, and we did take an interest, and we effectively enforced that interest with regard to another alteration of the Constitution which did not affect this House at all. So that the Minister's suggestion that this amendment is because of the ministerial ambitions of Senators here, is quite uncalled for. These amendments really mean nothing to the individual Senators of this House. The President, in the selection of the Executive Council, is absolute master of the situation. He can form it as he thinks fit without let or hindrance from this House; if the amendment were carried he would be in exactly the same position. He cannot be concerned into taking into his Cabinet any member of the Second Chamber, so that, from that point of view, one is amazed that there should be any serious opposition to this amendment, seeing that if it is adopted it really leaves matters much as they are, and brings no compulsion whatever to bear on the President. The desirability of making members of this House eligible for membership of the Executive Council is of course quite another matter.

Article 53 of the Constitution states:

...The other Ministers who are to hold office as members of the Executive Council shall be appointed on the nomination of the President, with the assent of Dáil Eireann, and he and the Ministers nominated by him shall retire from office should he cease to retain the support of a majority in Dáil Eireann, but the President and such Ministers shall continue to carry on their duties until their successors shall have been appointed: provided, however, that the Oireachtas shall not be dissolved on the advice of an Executive Council which has ceased to retain the support of a majority in Dáil Eireann.

It does not follow because a Ministry falls that there is a dissolution, and that another Ministry cannot be formed to carry on. The Minister also referred to the small vote obtained by Senators at the Seanad election. He overlooked the effect that the action of the Dublin Press had in regard to that election. The two Dublin daily papers entered into an arrangement whereby no report of any proceedings or meetings held in connection with the election would be published unless they were paid as election advertisements. These two papers, evidently, see the need for a second Chamber. They see, also, the need for selecting the most suitable people for that Chamber, but, nevertheless, their commercial instincts prevail over their patriotic aspirations. They would allow no one to secure publicity unless he was able to pay for it in hard cash. Just fancy what the position would be if a similar attitude was adopted with regard to the Dáil elections. Does anyone imagine the same interest would be taken in the elections or that the same number would go to the polls if the same measure of publicity was not given that all decent journals are supposed to give in matters connected with the legislature of the country? That, together with the fact that the electorate was much more restricted, though if anything more intelligent, accounts for the small vote.

This amendment has very little significance, as there is very little likelihood of the President, for some time to come, selecting any member of this House as a member of the Executive Council. So far, there have been in the other House very many more aspirants than offices and, on more than one occasion, I understand, Party discipline has been seriously impaired by disappointed aspirants. Fancy the position of a President, with any amount of aspirants around him, who would come to this House and appoint a Minister from it, whilst the others had their aspirations unfulfilled! It would mean mutiny, in all probability. One can feel that while that spirit of protection or actual prohibition prevails there is no likelihood of a Senator being selected for office. I understand also that the present Government feel that they have no thick-and-thin followers in this House, competent to take the position of a Minister, and that whoever was appointed would merely form a hopeless target for the criticism of his opponents and would, therefore, constitute a weakness rather than a strength. I would point out that what this amendment really seeks to do is to leave the President full discretion for selecting his Ministers from both Houses if he so desires, without in the least saying "You must do so." That is the constitutional liberty the President should have, and that prevails in most other Parliaments with the exception of the United States. That is a principle which can be discussed when a Bill dealing with this matter comes to be discussed.

The Minister seeks to legislate as if his own Party was to be the Party in power for all time, and as if the views that Ministers have in matters of that kind should prevail. It would be a better outlook if they took the view that some day their Party may cease to have a majority in the House. While they are in power they need never select any member of this House, but they should leave it to a subsequent President to have the liberty, if he so desires, of selecting Ministers from this House. The Minister suggests Labour, but I suggest that is a flippancy that he has introduced into the matter, and it certainly does not arise.

Eight years after the Constitution was passed an amendment could only be effective as a result of a referendum. That is one of the reasons why we should be very slow to introduce an amendment to the Constitution here, which experience may show will have to be re-amended, as it would be exceedingly more difficult to amend it then. I suggest to the mover that he should withdraw the amendment, as I do not think it is the best way to have this matter considered. At a later stage a Bill may be introduced to deal with the matter, or, as the Minister has agreed, a Joint Committee of both Houses might discuss it free from all prejudice.

I am not in a position to guarantee that a Joint Committee will consider this matter. I believe I would be in a position to guarantee that the Executive Council would not oppose the setting up of such a Committee.

That is sufficient.

While the Minister undertook to speak personally, from his assurance to the Seanad I take it that he is in favour of members of this House being eligible——

I am not but I am open to conviction.

The only reason advanced by the Minister at the special committee for his opposition to the amendment was that he thought the Bill, as it stood, should be allowed to go through. I can quote the Minister's words in the Official Report of the proceedings of the Committee, in which he said that he would be personally in favour of members of this House being eligible.

You could not.

The Minister may have said that he was favourable to the setting up of a Joint Committee for the purpose of considering whether members of this House should be made eligible.

CATHAOIRLEACH

He never went further than that.

In explanation of my attitude before the Special Committee, might I quote what I said:

There might be a lot to be said for it, but at the moment I can see certain things that could be said against it, and, perhaps, if I touch on these briefly to indicate that there are points which would fall for discussion by such a Committee it would not be out of place.

My whole personal trend was against the proposal, but I did say that I was quite prepared to see it considered by a Joint Committee provided this Bill was allowed to go through. My main objection before the Dáil was that this Bill had been put on the shelf, that the resolution had been sent down, and that the fate of the Bill on the shelf depended on the fate of the resolution and on the fate of the proposal when it came to be discussed by the Joint Committee.

CATHAOIRLEACH

I am afraid the Minister will find that he gave us every encouragement for suggesting a Joint Committee to consider this question, provided it was not coupled with this Bill.

Yes, but it was coupled with this Bill when this Bill was hung up.

CATHAOIRLEACH

I have a very distinct recollection of what occurred, and I think it will be found that what I state is correct: that the Minister gave the Committee every reason to believe he would support the appointment of a Joint Committee to go into the question. That request was confined to itself and was not coupled with this Bill. He was quite distinct in opposing it as part and parcel of the procedure of this Bill. He certainly never went the length of saying that he would support the proposition. He said he would support the proposition for a Joint Committee, but he never went beyond that.

We will leave it at that and accept the Minister's assurance. I would just like to refer to some remarks of the Minister and other speakers. We, as the Seanad, are equally responsible for legislation with the Dáil under the Constitution. We are not to be in any manner divested of that responsibility or to be considered a negligible part of the Oireachtas. Our position is not a minor or secondary one. The principle object of the Oireachtas is the making of laws. Under Article 12 of the Constitution it is stated that "the sole and exclusive power of making laws for the peace, order and good government of the Irish Free State is vested in the Oireachtas." The Oireachtas is not the Dáil. We are equally responsible with the Dáil. Very often when Bills came to this House we transformed them so radically that one could not recognise them as the same measures that came from the Dáil. We accept full responsibility for every law. That is where we take exception to this Bill. We are not given opportunities of amending certain Bills as otherwise we would amend them because they are rushed through, but the onus is on us equally with the Dáil. However, when an immature and imperfect Bill is brought here and thrown out we are branded as not being worthy of our position here.

I am quite willing to withdraw the amendment if I get some sort of an assurance that the Minister will take his courage in his hands and go a little further than he has done—if he would assure us that the Government would introduce such a measure—it would be a very short Bill, I am sure—or that he would himself of his own volition make the proposal that a joint committee be set up for the purpose of going into this question. It is only a formal matter. The Minister said the proper thing is to initiate a Bill here. I can see such a Bill meeting with the same fate as the Wild Birds Protection Bill. It would go to the Dáil loaded down with prejudice and would never have an opportunity of getting back here. Even though nothing eventuates, the whole position will be threshed out, and perhaps I would see at the Joint Committee there would be no object in pressing these amendments at all. I am quite broad minded enough to say that.

There is no member of the Seanad aspiring to Executive office. I have not the least ambition in that way. I do not think, seeing all the aspirants for office that there are in the Dáil, that any man here, even if he were a superman, would have the slightest chance of getting into the Executive. All these arguments, I might point out, apply with equal force to the Legislatures in the Dominions. Members of the popular House are pressing for Ministerial office, so that Ministers and Prime Ministers have to meet the same pressure as would be brought to bear even though Senators were made eligible for office. If the Minister would see his way to give the assurance that I ask, he would make some sort of amende for the curt reply he made to the very courteous message which this House sent to the Dáil. If he will undertake, as a quid pro quo, to propose in the Dáil that a Joint Committee be set up I will withdraw my amendments.

I am largely in agreement with what Senator O'Farrell has said in regard to the amendments, and I think they should be withdrawn. I think there is conveyed in the report something which Senator Kenny has probably read as meaning that the Minister did make a promise. This is the statement the Minister made:—

"It may be a new phase, but I am dealing with the circumstances as they exist. In the light of those circumstances I am not prepared to ask the Dáil to accept the amendment if the Seanad passes it. I would be prepared to ask the Dáil to co-operate in extending the eligibility of member of the Executive Council to the entire Oireachtas."

This report as reports of the Dáil is incorrect in detail, and I could not go through it and correct it in every line and every letter. What I did say was not that I would ask the Dáil to co-operate in extending, but that I would ask the Dáil to co-operate in considering the advisability of extending. All the time my position was that apart from this Bill I had no objection to a Joint Committee to consider that matter. I was quite definite in that before the Special Committee, and so far as I am concerned I am quite definite on it still.

Will the Minister undertake to propose to the Dáil that a Joint Committee be set up?

I will not undertake to propose it to the Dáil. I do not know what the fate of it would be. I know that Deputy Johnson objected most emphatically even to participate in such a Joint Committee. It was he who suggested to me that to go into such a Committee was, in effect, to give a Second Reading to the proposal, that the Dáil considered there was need for something of the kind. My position is: I would suggest to the Executive Council that the Dáil should be left free, on non-Party lines, to decide whether or not it wanted to co-operate in a Joint Committee in considering that specific proposal.

CATHAOIRLEACH

I think there is no doubt that the Minister went further than that in our Committee.

If the Minister desires to retire from that attitude and throw the onus on to the Dáil, every member of the Seanad can foresee what will happen there. Unless it has Government backing, there is not the slightest use in pressing it. We might as well meet our Waterloo here as in the Dáil.

Might I suggest procedure by way of a Bill? It is perfectly open to the Senator to proceed by way of a Bill here.

And it will meet with the same fate as the Wild Birds Bill met last week.

CATHAOIRLEACH

The difficulty with regard to a Bill is obvious. If this Bill passed, then any Bill introduced hereafter would not only amend the Constitution, but amend this Bill.

What troubles me about Senator Kenny's attitude is that I understood we were all agreed that our action in regard to this Bill would not be of a bargaining nature. Every one has repudiated the idea that in suggesting this Joint Committee and in postponing the Bill, we did so with the object of bargaining with the Government, or that we desired to make use of our attitude on this Bill so that Senators should be made eligible for posts in the Executive. The Senator, however, still seems to be bargaining.

It is not to get an admission from them but to get consideration of a Joint Committee for the whole position. There was no element of bargaining in so far as my attitude was concerned.

I am not suggesting anything about making a bargain. I am suggesting that what you are trying to do is to get a compromise from the Minister that we now should go on, not to accept your amendments, but to pass the Bill. That is, as far as I understand, the opinion of the Seanad. We suggested a Joint Committee and to postpone the Bill to see if we could get a Joint Committee. It was not the suggestion of the Seanad to hold a pistol at the Government's head and to say, "if we do not get that Joint Committee and the concession we will not pass this Bill." I do not think the Seanad are in any way helping the object they have in view by trying to force the Minister to accept amendments in order to get his Bill by making us some compromise of an indefinite nature in regard to whether we can get a Joint Committee to consider the matter of whether Senators should be eligible for elections Ministers or not. As far as I am concerned, there was nothing further from my mind than that we should attempt, in any way, by our action in this Joint Committee to force the hands of the Government.

The whole matter as far as the Bill is concerned is one for the President and the Executive Council and is not one in which the Seanad should interfere. I think we should have the dignity to admit that. If we want to settle the question of whether Senators should be eligible to be members of the Executive we should keep it to itself and not mix it up with another question. We have sufficient assurance given that we will get that consideration when we ask for a Joint Committee to consider the matter later on. I can hardly suggest again to Senator Kenny that he should drop his amendments, but I think he is wrong in asking us to vote against this Bill.

Senator Kenny asked will I give an assurance that the Government will move a resolution that a Joint Committee be set up. I could not do that. I do not think the resolution would pass. It is unwise for the Government, to use a slang phrase, to bite off more than it can chew. I believe the Dáil might not pass such a resolution, and I do not agree that they should be compelled to pass it as a matter of Government confidence. On the other hand I would ask, and try to secure that the Government as such would not oppose a resolution of that kind, and in that state of affairs I am prepared to say personally and individually I would be glad to see the resolution passed. I would be glad to hear a close discussion across a table on the merits of the situation. But my present view is against the proposal. I dislike it. I do not think the Seanad ought to contain potential or prospective Ministers. The very fact that it did contain such would begin to alter, impalpably but certainly, the whole character of the Seanad.

It would create parties here, and party points of view, and would take somewhat from the calmness of the deliberations of the Seanad. But I have no objection at all to having the matter discussed as between members of the Seanad and the Dáil, and I am prepared to say if such a resolution comes from the Seanad, not in connection with this Bill, but quite apart from this Bill, I would be glad to see such a committee set up, while I myself have my own views about the merits of the proposal.

I should be glad to see this amendment withdrawn, but at every possible stage that I can oppose this Bill I shall oppose it. I still feel as I felt when the original Committee was set up, that this Bill cuts across the Constitution. I said it was vicious, and I add it is an amendment of the Constitution which is in an unwise direction. For that reason I think it is my duty to prevent an amendment of the Constitution which I think is for the worse. Further, if the House, as many speakers suggest, think it would be well to have Senators Executive Ministers in the Dáil, for my part I do not think it would be well. In this I take the point of view of the Minister, but I think it would be well to have some Minister of the Government in the Seanad. For that reason I will oppose this Bill as drastically as I can all through, because if it is passed, and we wanted to bring in a Bill securing that members of this House should be Ministers, we would have first and foremost to amend this Bill, and to amend other articles of the Constitution. By not passing this Bill, the status quo remains, and we have still power to have Extern Ministers in the Seanad.

The precedent of two matters cropping up in one Constitution Bill has been established, provided they are relevant. I submit my amendments are entirely in line with the text of the Constitution Bill No. 5, and they are not separate matters. The Minister, to be consistent, if a message is sent down from the Seanad, or if a Bill is introduced here, or an invitation is sent forth for the purpose of setting up a Joint Committee, one must take up the same attitude he took up when a message was sent down the other day. It was at his instigation and by his argument that the invitation was prejudiced, and had no chance of getting through. Now he tells us if a similar message comes to the Dáil he will alter his attitude.

The Senator need not worry about my consistency. I will look after that. I opposed the resolution that went down from here, because it was in connection with this Bill. If a resolution comes down now before this Bill is through the Seanad I shall take up the same attitude, but if a resolution comes later I shall say that I, personally, would be glad to see this question opened up, though I have my own very definite view, for discussion between the members of the Dáil and Seanad.

The Minister unfortunately did not confine his argument to that. He did not say it was because it was associated in any way with the passage of this Bill here. If that was his answer I could understand it. He went outside that and went over the whole range of argument, to show that such a thing would not be beneficial to the Constitution. I anticipate from the whole tenor of this discussion and the Minister's attitude, and the attitude of the Seanad itself, that there is no use in my pressing these amendments. We still have the Bill to deal with, and I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Question—"That Section 2 stand part of the Bill"—put and agreed to.
The Title was agreed to, and the Bill ordered to be reported.
The Seanad went out of Committee.
Bill reported without amendment and ordered for Fourth Stage.
Seanad adjourned at 6.10 p.m. until Friday at 12 o'clock (noon).
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