Seanad Éireann debate -
Tuesday, 10 Jul 1928

Vol. 10 No. 23

PUBLIC BUSINESS. - CONSTITUTION (AMENDMENT NO. 10) BILL, 1928—THIRD STAGE.

The Seanad went into Committee.

Mr. O'FARRELL

I tabled amendments for the last day on which it would be expected that this Bill would be taken in Committee. They were duplicated, but they were not printed, and because of some misunderstanding they were not circulated. They are now in the possession of Senators, but I am not responsible for the fact that they were not circulated. Therefore, I ask your permission to move them. The first is to Section 2:—

Section 2. To delete the section and to substitute therefor a new section as follows:—

2. Article 47 of the Constitution shall be and is hereby amended to read as follows:—

47. Any Bill passed or deemed to have been passed by both Houses may be suspended for a period of thirty days, on the written demand of two-fifths of the members of Dáil Eireann and by a majority of the members of Seanad Eireann presented to the President of the Executive Council not later than seven days from the date on which such Bill shall have been so passed or deemed to have been so passed. Such a Bill shall, in accordance with regulations to be made by the Oireachtas, be submitted by Referendum to the decision of the people, if demanded before the expiration of the thirty days by a resolution of Seanad Eireann assented to by three-fourths of the members of Seanad Eireann and by a written demand of two-fifths of the members of Dáil Eireann, and the decision of the people by a majority of the votes recorded on such Referendum at which a majority of the voters then on the register shall have recorded their votes shall be conclusive. These provisions shall not apply to Money Bills or to such Bills as shall be declared by both Houses to be necessary for the immediate preservation of public peace, health or safety.

CATHAOIRLEACH

You were good enough to see me about this matter, and the Clerk has also mentioned it to me. It appears that the matter came up when the Deputy-Chairman was in the Chair, and a ruling was given upon this amendment. How did that ruling come about? Was the Bill then in Committee?

Mr. O'FARRELL

No, sir. It was proposed to take it in Committee, and the Leas-Chathaoirleach proceeded to rule these amendments out of order, but just as he was doing that, opposition manifested itself to taking the Committee Stage of the Bill that day. I also offered opposition and remarked that in regard to a point of order I would have some remarks to make when the proper time came. The House decided to take the Bill to-day, and hence neither the Committee Stage nor the point of order could be dealt with on that occasion.

CATHAOIRLEACH

I understand that the point of order that was raised was as to how far this amendment was consistent either with the Title or with the scope of the Bill, and that the Deputy-Chairman was of opinion that it was outside the Title of the Bill. I do not know if he also expressed the opinion that it was outside the scope of the Bill. With regard to its being outside the Title of the Bill. I do not think that is a matter that would justify me in ruling the amendment out of order, and for this reason: Very often amendments are accepted on the Committee Stage of a Bill which enlarge the purpose of the Bill, and consequently the Title has to be amended at the close of the Committee Stage. It is for that reason that consideration of the Title of a Bill is always postponed until all the clauses of the Bill have been disposed of, in view of the possibility that the Bill may be extended or altered in some way in Committee and that the Title would consequently require alteration. But the other consideration is a much more difficult one—that is, how far it is inconsistent with the scope and purpose of the Bill, and inasmuch as this Bill is confined to two specific matters, one being the deletion of Article 47, and the other the deletion of Article 48, I could not differ in any way from the ruling given by my colleague, the Deputy-Chairman, unless I was absolutely convinced that his ruling was wrong. I think that there ought to be that amount of courtesy between the Chairman and his Deputy, that unless the Chairman is quite satisfied that the ruling given by his Deputy on precisely the same question is wrong he ought not to depart from that. I am not at all prepared to say that his ruling was wrong. At the same time I do not think that you are in any way prejudiced, Senator, because you will be quite entitled, of course, when I put any particular clause of this Bill to the House, to challenge it, and, if you wish, to have a division on it. But I could not, I think, accept the amendment in the terms on the paper, because I agree with Senator Bennett in thinking that that is outside the scope and purpose of the Bill. There is a prevalent idea to which I think the Executive themselves gave substantial support, that a Bill to amend the Constitution must deal with one particular matter only. I do not know of any authority in the Constitution for that, certainly not in our Standing Orders, but it has apparently been the practice. In this case that practice has been departed from, because this Bill purports to amend two definite and distinct Articles of the Constitution. Of course they are connected, one with the other, but it will result in two distinct amendments of the Constitution if it is passed. Therefore I will not prevent you in Committee, nor could I prevent you, from challenging the motion that I put from the Chair that Clause 1 or Clause 2, or whatever the clause may be to which you object, should be part of the Bill. But I cannot allow the amendment in the form in which it is on the paper.

Mr. O'FARRELL

Will you allow me, before you give your final ruling on this point of order, to submit a few remarks for consideration?

CATHAOIRLEACH

Certainly. It is a very difficult question. I do not profess, in the short time at my disposal, to have had a sufficient opportunity to look into it to the extent and degree to which the importance of the question you have raised is entitled, and therefore I will gladly listen to anything you have to say.

Mr. O'FARRELL

I have only to say that your ruling in this respect will be, in my opinion, of great importance in regard to all constitutional measures in the future. This Bill deals definitely with two Articles of the Constitution: Article 47, which provides for the submission of certain matters to the people by Referendum, and Article 48, which provides for the initiation of legislation by the people. They are two definite and distinct Articles of the Constitution. It is quite possible to remove Article 48 from the Constitution altogether without in any way interfering with Article 47; they involve two different principles and are not in the least interwoven—at least Article 47 is quite independent of Article 48. When we were discussing this on the Second Reading the burden of the speeches was, in the main, in support of the deletion of Article 48—in other words, for Section 3 of the Bill, and in opposition to Section 2, which proposes to delete the Referendum. Are we, therefore, placed in the position of having to swallow the two or neither of them? Must we throw out the baby along with the bottle, because that is really what it amounts to? If it is competent for the Government to bring in a Bill to amend, say, four Articles of the Constitution instead of two or three, must the Oireachtas, or this House, accept the whole or none? Must they reject the Bill as a whole, although they may like portions of it, because they dislike other portions, or is there to be a separate rule of procedure in regard to Constitution Bills which does not apply to ordinary legislation? I would suggest, sir, that you would seriously consider the great disability which the ruling you propose to give would place the House under in connection with a Bill of this kind. It has been a well observed procedure so far to introduce a separate Bill in regard to an amendment for each Article of the Constitution. I do not know whether that was a question of tactics or whether it was a question of constitutional procedure, but it certainly has been a convenient way of dealing with the thing. The Government have departed from that procedure, have now embodied the deletion of two Articles in one Bill, and we are told that we must have either the two or neither of them, although they are independent of each other. I suggest, therefore, that my amendment might reasonably be stated to be in order, seeing that it does not destroy the whole principle of the Bill, but merely seeks to amend one Article involved in it, instead of deleting it as is proposed.

CATHAOIRLEACH

Your suggestion is that Clause 2 is, so to speak, part of the machinery for giving effect to the main purpose of the Bill, and you suggest that that could be carried out in a better way, that is to say, by your amendment?

Mr. O'FARRELL

Yes.

CATHAOIRLEACH

And, therefore, you suggest that that amendment is not outside the scope and purpose of the Bill. I do not know whether the President would like to say anything on this point of order. I would like to get assistance upon it. If the House is not prepared to give me assistance on it, or if I cannot get the benefit of the views of the Government. I shall not decide it to-day, because it is too important. I shall take time for its consideration and give my decision to-morrow.

Mr. DOUGLAS

I hope you will do that, because I do think it is a matter of very considerable importance. I am not expressing an opinion on it. I was away and and I only saw this a few minutes ago. Virtually what Senator O'Farrell proposes to do is to amend a section of the Bill which would delete an Article of the Constitution—merely to amend it instead of deleting it. That is a matter that I think ought to be very carefully considered, because it will effect very vital matters.

CATHAOIRLEACH

It does seem a strong conclusion to arrive at that if a Bill is brought in to delete a particular provision in the Constitution this House is deprived of any power of saying: "Well, we are against deleting it, but we are in favour of amending it." That does seem a strong proposition, and that is the proposition, I understand. It is a matter that I certainly think, apart from its materiality upon this Bill, is of very great importance for the future.

Mr. O'FARRELL

Does it not mean in effect that there is neither a Committee nor a Report Stage, that the whole question is decided upon on the Second Reading?

The PRESIDENT

I submit that there is more than a Second Reading Stage. There is the principle of the Bill, and, of course, I am at this disadvantage that, while a whole series of recommendations that have been made by the Joint Committee have been embodied into a number of Bills, in this particular one you have what are apparently certain rights of the Seanad taken away. But, of course, in another Bill reconsideration is given to the rights of the Seanad for holding up measures. For example, under this Bill the right of the Seanad for holding up a Bill for 270 days is taken away, but there is another measure in which the right to hold up Bills is extended. In this particular case, I find it hard to deal with the point of order without to some extent going into the amendment that is proposed. In essence the proposals in the Bill are to take away the Initiative and the Referendum in respect of legislation. A modification or restoration of that is, I submit with respect, against the principle of the measure and is equivalent to a negative. That purpose can be achieved by voting against the measure.

CATHAOIRLEACH

Would there be any objection to disposing of the remainder of the Committee Stage, if no further amendment is moved, and then let the Committee Stage be adjourned until to-morrow? I would look into it then and give a decision upon it to the best of my judgement and ability. It is too important for me to be asked to give a decision upon it now. I am quite prepared to give my opinion now, but I do not think I would be wise in doing so.

Mr. O'FARRELL

I appeal to you to adopt that course, because I have very little doubt as to what the fate of my amendment will be, but I am more concerned on the question of order in regard to future amendments.

CATHAOIRLEACH

It is because of its importance as a precedent that I wish to be very careful in coming to any decision upon it. I am greatly struck by the fact that it would amount to this, that an Omnibus Bill might be brought in dealing with the Constitution and providing for, say, the deletion of four different Articles in the Constitution. If that were passed on Second Reading it would be a strong thing to say that on the Committee Stage a Senator would be precluded from suggesting that, instead of deleting one of these four clauses, it should be amended in such a way as would alter its effect— to make a radical change in it but nevertheless not to delete it.

That seems a strong proposition. It may be quite sound. I can quite see the view put forward by the President and I am sure that is the view that influenced my colleague—that where a Bill only provides for the deletion of a thing and that that is the sole and only provision that the Bill contains. that an amendment of that is inconsistent after the acceptance of the principle on Second Reading. In other words, the House by passing the Second Reading, has approved of the principle of the deletion of Clause 47. A question of order then arises: Is it competent on the Committee Stage, for the same House that has approved the principle, to delete and go back on that, and to substitute amendments opposed to the principle? I think that is the point narrowly put. I think it is wiser for me to say that I will consider the matter and give my considered opinion of it when the House meets to-morrow.

The PRESIDENT

May I put another point. The amendment states any Bill "passed or deemed to have been passed by both Houses may be suspended for a period of 30 days." A Bill passed by both Houses obviously ought to have a majority of the Seanad.

CATHAOIRLEACH

It must have.

The PRESIDENT

It goes on to say——

CATHAOIRLEACH

Are you speaking now on the merits of the amendment?

The PRESIDENT

Not exactly upon the merits of the amendment, but rather on the point of order.

Mr. O'FARRELL

The fact of a Bill being passed does not mean that it had a majority in the Seanad. It could be passed by being held up.

The PRESIDENT

That is another point. We are getting into the other measure that I spoke of. What this really means is that not alone is the Seanad to have twenty months to hold up a Bill, but that it can also exercise the option of having the Referendum on it in the event of a petition—that is twenty months plus Referendum.

Mr. O'FARRELL

That is not a point of order.

CATHAOIRLEACH

I should like, if I could lure them on this, to have the views of Senator Brown and of Senator Douglas. Senator Douglas took a very important and a very active part in the framing of this constitution. On these questions of order it is quite open to the House to give assistance to the Chairman. I make no apology for saying that in this matter I should like to have all the assistance I could get.

Mr. DOWDALL

I think, sir, that your suggestion is the best one. If the matter is left over until to-morrow you will, I take it, have the opportunity of consulting with Senator Brown.

CATHAOIRLEACH

The only objection that there may be to putting it off until to-morrow is that time, as we all know, is an important matter at pressing with both Houses. Time is pressing with both Houses. If I could get the House to agree that, whatever ruling I am to give to-morrow on this, the House would then dispose of the Report Stage of this Bill to-morrow, I would then have no hesitation in postponing any consideration of it.

Mr. DOWDALL

As one who voted against the Bill I will offer no opposition to that. There are a great many items on the Order Paper still to be disposed of to-day, and I think we might proceed with their consideration now.

CATHAOIRLEACH

On that understanding I shall postpone my opinion on this matter until to-morrow. I take it. Senator O'Farrell, that the same difficulty will arise on your other amendment?

Mr. O'FARRELL

The other is consequential.

CATHAOIRLEACH

In that event there are no other amendments to this Bill. I will put the different sections on the Committee Stage, save for the purpose of re-opening any of them if I decide in favour of Senator O'Farrell's amendment.

Mr. O'FARRELL

Do you propose to take the Committee Stage now?

CATHAOIRLEACH

There is nothing more to be done on the Report Stage. If I rule that the amendment is out of order then the matter is over, but if I rule that it is in order then the Committee Stage will be resumed, but discussion on the matter will be confined to the Senator's amendment. I ask the House to allow the Report Stage to be taken to-morrow.

Agreed.

Progress was reported, and the Seanad went out of Committee.