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Seanad Éireann debate -
Wednesday, 8 May 1929

Vol. 12 No. 8

Superannuation and Pensions Bill, 1929-Third Stage.

The Seanad went into Committee.
Sections 1 and 2 agreed to.
SECTION 3 (1) AND (2).
(1) The Minister may by order authorise the grant of pensions, allowances, or gratuities to widows to whom this section applies and may by any such order regulate and appoint the rates and scales of such pensions, allowances, and gratuities, and the conditions under which the same are to be payable, and may by any such order prescribe the penalties for any fraudulent conduct in relation to an application for any such pension, allowance, or gratuity.
(2) No order made under this section shall come into operation unless and until it has been laid before each House of the Oireachtas, and approved by resolution of Dáil Eireann, and when considering any such resolution Dáil Eireann shall duly consider any recommendation which shall have been previously made by Seanad Eireann in respect of such Order.

I move:—

Section 3, sub-section (1). To delete all after the word "payable" in line 16 down to the end of the sub-section.

The words referred to are as follows: "and may by any such order prescribe the penalties for any fraudulent conduct in relation to an application for any such pension, allowance, or gratuity." It is announced that this has been certified as a Money Bill. Sub-section (1) gives power to the Minister to do certain things by order in relation to pensions to widows of ex-R.I.C. men. It is possible by the words which I have read out for the Minister by such Order to prescribe penalties for fraudulent conduct. It seems to me that to allow an order to be made by the Minister to prescribe penalties for fraudulent conduct is going beyond the limits of what should be done by order. Senators are familiar with the very considerable dissatisfaction that there has been of recent years, not only in this country but more particularly elsewhere, as to the growth of legislation by order, and this is an illustration of the way in which the practice grows of allowing what are, in fact, legislative enactments to slip through by the order of a Minister. One cannot consider this particular amendment without having regard to the next sub-section. I would point out that the order the Minister may make in sub-section (1) to prescribe penalties for fraudulent conduct, by sub-section (2) would not be subject to consent, approval or ratification by the Seanad, so that, in fact, if the Bill passes in its present form the Minister is in a position to make an order prescribing penalties for fraud, without any assurance—the mere possibility, but certainly no assurance—that the order will be ratified by the formal approval of the Dáil. It will be noted—I do not want to enlarge upon this part of it —that in the latter part of sub-section (2) the Seanad may have an opportunity of making a recommendation to the Dáil in respect of such an order, but I am contending that an order which prescribes the penalties for fraudulent conduct should come within the range of legislation, that it should not be even possible for it to pass into legal force without at least the formal approval of the Seanad. It is pointed out that this is a Money Bill under the Constitution, and it may be pointed out—I am sure it will be pointed out—that the Principal Act, of which this is an amendment, also contains similar provisions, and that the provisions to which I am now drawing attention are merely repetitions of such provisions, which are contained in the Principal Act. The Principal Act was passed in 1923, and I may say, in passing, that it came to the Seanad, and with a few words of explanation by the President, passed, without any consideration, through all its stages in about five minutes. But it happened that quite by accident I noted that in the discussion on the Committee Stage of the Principal Act I adverted to the point I am now drawing attention to in respect to making provision by order prescribing penalties for fraudulent conduct. I said:

That, I think, goes beyond what should be allowed by an order. I would imagine that the ordinary law against endeavouring to obtain money by false pretences is quite strong enough without empowering the Minister for Finance to prescribe such penalties in an order. I wonder whether sufficient consideration has been given to this sub-section. I think it is too much power to authorise in this way, to give the Minister power to make an order prescribing the penalty.

It is not particularly my own statement, which was evidently made without very much pre-consideration, that I wish to call attention to, but to that of the President, who said:

In the absence of any particular information from the Attorney-General, I should say that in such cases there are prescribed penalties for infringing any pensions laws, but this is a new pensions law, and it is quite possible that, owing to the peculiar circumstances of it, that it might be open to abuse, and as such there might be a difficulty in prosecuting a person who had taken advantage of it and by fraudulent misrepresentation made a case for a pension, so that I take it the reason was that, it being special legislation dealing with a special class, unless provision were made for imposing such penalties, it would not be possible to prosecute a person for making fraudulent representations in connection with it.

I do not think anyone will assert that that was a very satisfactory or convincing explanation of the reason for this provision being inserted. The fact remains that it was inserted, and that no further discussion took place upon it. The matter was not pursued. I draw attention to the fact that that was in 1923, when a great many things were occupying the minds of Deputies, Senators and Ministers, and that many things were allowed to pass which, in normal times, would have been objected to. Now that we are in normal times, I hope, here we have an attempt to repeat what I consider to be an extension of the powers of the Minister beyond what is reasonable, and I am, therefore, moving that the sub-section should be amended by the deletion of these words. I will reserve any further comment in regard to the effects of sub-section (2) until the amendment in that regard is moved. I should say that while that particular provision in the Superannuation and Pensions Act, 1923, was inserted, a later Act, the Gárda Síochána Act, Section 8, dealing with pensions, also contained a provision of a similar kind, and this is the point I want to note, that Section 8 (2) of the Gárda Síochána Act, 1924, provides that no such order shall come into operation until it has been laid before each House of the Oireachtas, and approved by resolution of each of such Houses. That makes a very considerable difference in the position of the Seanad in regard to such an order. Whatever we may say regarding the advisability of giving powers to prescribe penalties to a Minister, it, at least, secured that such order would not come into effect until it had the formal approval of both Houses. In the case in question there is no provision suggesting that formal approval will be required before an order of the kind comes into effect.

I do not wish to resist the passing of this amendment. I am not sure that we could let the Bill pass without any penalty provisions, but I am inclined to agree that, at any rate, the wording of the Bill, as it stands, is wider than it need be, and, if this recommendation is passed by the Seanad, and I find it possible to devise a different wording, I could have that adopted as an alternative in the Dáil. For that reason I do not resist the recommendation.

I am glad the Minister is taking the attitude that he has just stated towards this amendment. I think this amendment taken with the section raises a pretty important point. This House has, to the best of my recollection, maintained as far as it possibly could the principle that it claims the same right as the Dáil in the matter of orders, except where the order is purely a money matter. If a Bill has been certified as a Money Bill we have not objected in the only way that was open to us. If we see something in it which provides for the making of orders by the Minister on matters which are not strictly money matters, this House should have the same powers of refusing the order as the Dáil. I think the two amendments taken together raise a question of considerable importance, and I am in substantial agreement with Senator Johnson, but I think, at the same time, if the Minister had not adopted the attitude that he has towards the first amendment we could hardly have pressed him, as I think some such provision with regard to penalties is essential.

I agree with the Senator who has just spoken. I would like to impress further this argument on the Seanad that the section as it stands is framed so as to authorise the Minister to pass penal legislation. I am glad the matter has been adverted to, because I think it enables us to call attention in a very pointed way to a very great defect in modern legislation, namely, that it tends towards bureaucracy, towards giving legislative power to Ministers and secretaries of Ministers and officials in the offices. I think that when a citizen——

On a point of order. Has not the Minister accepted the amendment?

Cathaoirleach

That does not prevent the Senator from speaking if he wishes.

I am surprised at Senator Gogarty pulling his shield over the Minister. I think it is highly undesirable that any person should be brought before a court of justice and tried in respect of disobedience of a regulation made by a Minister, even though it is a regulation under an Act of Parliament. That is what would happen if this section stands. I am glad the Minister agreed to reconsider the matter, and when he does reconsider it, I hope he will be able to put into the section the exact offences that are contemplated, so that persons who break the law may be tried under the words of the statute, and not of any regulation.

Whatever the Minister for Finance does with the wording of the amendment, that can be discussed on the Report Stage, but Deputy Johnson has raised a very important issue, and I think it well that the Seanad should take note of the fact. The position is this: that whenever a Money Bill, in the opinion of the Seanad, interferes with the liberty of the subject, the Seanad is bound to take whatever means it can to defeat that object. Senator Johnson has raised this point at a very appropriate time, and I hope that the precedent we are now setting will be borne in mind.

Recommendation put and declared carried.

I move:

Section 3, sub-section (2). To delete all after the word "of" in line 22 down to the end of the sub-section and to substitute therefor the words "both Houses."

The object of this amendment is to bring the provision into line with legislation in respect to the Gárda Síochána pensions, under the Gárda Síochána Act, rather than into line with the provisions of the Superannuation and Pensions Act: "That is to say, that no order made under this section shall come into operation unless and until it has been laid before each House of the Oireachtas and approved by resolution of both Houses." That would be the effect of the sub-section as amended, and it seeks to delete the provision in the draft which says: "that such order shall be made by resolution of Dáil Eireann, and when considering any such resolution Dáil Eireann shall duly consider any recommendation which shall have been previously made by Seanad Eireann in respect of such order." I am afraid I am not content to accept the view of Senator Douglas, that the provision of the Constitution regarding Money Bills must be held to apply to orders made in respect of money matters. Unfortunately the powers given to the Minister to make orders empower him to include many things.

On a point of explanation, I did not say that. What I said was that this House, to the best of my recollection, insisted in every case, except where it was a matter of money, where they were not in a position to insist.

I take it, then, that Senator Douglas is not necessarily approving of the contention that an order which is consequent upon a Bill, which has been declared by the Ceann Comhairle to be a Money Bill, must necessarily be removed from the jurisdiction of the Seanad.

Not necessarily.

An order made while purporting to affect the imposition of taxes, if that were possible, but certainly the appropriation of moneys, might also bring conditions, and certainly these conditions ought not, in my view, be removed from the jurisdiction of the Seanad simply because the original Bill under which the order was made was declared to be a Money Bill. If one reads sub-section (2) carefully one will find that in addition to the objection I have mentioned it would be quite possible for the Dáil to approve of an order before the Seanad had an opportunity to make a recommendation, and in such a case the Seanad recommendation would be of no effect whatever. I am seeking to delete all the words in the last four lines of the sub-section, and to ensure that any order, before it comes into effect, made under this Bill, shall be approved by resolution of both Houses. That would bring the provision regarding this class of pension into exact line with the provision regarding the pensions of the Gárda Síochána under the Gárda Síochána Act of 1924.

I think the comments of Senator Johnson in reference to this section are deserving of serious consideration. I think both these amendments, from the point of view of liberty and constitutional right, are very valuable. I do not wish, on a Bill like this, to raise any great question of controversty, but I would like the Minister to understand that sub-section (2) of section 3 is, in my opinion, very bad from a constitutional point of view. I do not know whether Senator Johnson wishes to press his amendment. I imagine that it would be best, having made that recommendation, and having made our protest, to leave it to the Minister to consider this matter very seriously before the Bill comes on again.

I am not as much influenced by what Senator Johnson has said on this amendment as by what he said on the other. It seems to me that when we are dealing with an order or a regulation which is a financial order or regulation, and which is of such a character that if the substance of it were embodied in a Bill it would be a Money Bill, it is not desirable, on the whole, that such an order should require the positive concurrence of the Seanad before it would become effective. As a matter of fact, I think it would be a somewhat absurd position if we had legislation which, for convenience and for the saving of time, enabled certain things to be done by order, that it should be possible for the Seanad to impose an absolute veto on these matters, whereas if the same things were done by way of a Bill the Bill would be a Money Bill, and the right of the Seanad would be the right only to make recommendations. I do not think that any very definite line has been taken in framing legislation on matters of this sort. In certain cases it has been provided that the order or regulation must be approved by the Seanad. In other cases, certainly in the Principal Act, which this is amending, it was provided that the order should be approved by the Dáil, but that recommendations made by the Seanad should be considered. It seems to me that matters of this character are very closely analogous to the voting of supplies, and are the kind of matters for which the Seanad need not take responsibility. I do not think that any good purpose would be served by the adoption of the amendment suggested by Senator Johnson. I certainly think that, so far as these regulations that are contemplated under this Bill are concerned, it is most desirable that they should be made in the same way as the orders made under the Principal Act.

I think that the Minister has missed the essential feature of this. There is nothing in any legislation, or in any Standing Order, so far as I know—and Standing Orders have not the effect of legislation —to ensure that the order will only contain matters dealing with money under the definition of Article 35. If the Minister were to insert in this Bill, for instance, a provision such as is in the Constitution regarding the certification of the Ceann Comhairle, I could understand the logic of his case, and I think I could agree with it. But we have no assurance but that the Dáil would approve of an order made by the Minister for Finance which went outside the definition of a Money Bill, and yet the Seanad would have no right, and certainly no authority, to disallow it. The important thing is to know that the order will deal purely with a Money Bill under the definition in Article 35 of the Constitution. If we could be assured that that was the total content of the order, then I think the Minister's case would be pretty sound. But there is no such assurance, and I do not know how it is to be supplied by the provision in the Bill. I do not know whether it would be quite in accordance with precedents to insert in a Bill of this kind a provision requiring the Ceann Comhairle to give a certificate of the money character of the order to be made by the Minister after it had gone through the Dáil. It seems to me that something is required to ensure that the order that the Minister speaks of is, in fact, concerned only with money provisions, as defined in Article 35 of the Constitution.

The difficulty I see is that we have inserted an amendment by way of a recommendation which leaves the order to be made one which fairly well comes within the Minister's definition. We know that he is likely to insert other words in the other House, and if these other words deal with penalties, then the first part of the order he would make would be a Money Bill if it were in a Bill by itself, and the second part of it would not be a Money Bill if it were in a Bill by itself. That is the difficulty I see. Technically, at the moment, as the other amendment has been accepted. Senator Johnson's case is not so good, but we know that other words are to be put in its place, and that creates a difficulty, to my mind. Surely this matter of penalties in an order is a matter in which this House should have a say. If it is a matter as to what pensions ought to be paid under an order, then I do not think it is a matter to which this House ought to have anything to say.

Recommendation put and declared carried.
Question—"That Section 3, with the recommendations, stand part of the Bill"—put and declared carried.
Section 4 and the Title put and agreed to.
The Seanad went out of Committee.
Bill reported to the House.
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