Ministerial Orders and Regulations. - Proposed Examining Committee. – Seanad Éireann (1928 Seanad) – Thursday, 28 Nov 1929

Ministerial Orders and Regulations. - Proposed Examining Committee.

The Seanad resumed discussion on the following motion in the name of Senator Johnson:—

That it be an instruction to the Committee on Procedure in revising the Standing Orders of the Seanad to make provision for the appointment of a Standing Committee whose function it shall be to examine all orders and regulations made by Ministers of State which are required by statute to be laid before the Oireachtas, and when they deem it necessary to report to the Seanad respecting the purpose and effect of such orders or regulations.

Mr. Milroy

I think that the Seanad acted prudently the last day that this matter was before it in not coming to a decision, because though on that day when the matter first came before us I could not say that I had any very strong reasons to urge against the proposal, and some of the arguments that were put forward by the proposer and the seconder seemed weighty, still upon further consideration I, for one at any rate, did not find that that consideration tended to support the idea that the setting up of this Committee would fulfil a very useful purpose. Before I come to the actual proposal I should like to refer to one or two of the statements made by Senator Johnson and by Senator Comyn in seconding the motion, statements which probably constitute the arguments most likely to weigh in favour of the proposal but which, to my mind, were entirely inaccurate. I refer to those statements which were, in fact, contentions that orders and regulations could override, vary or alter the statute law. I think that if that contention could be substantiated a very serious issue has been provoked. Senator Johnson said: "I am drawing attention to the fact that statute law may be altered by the exercise of the Minister's powers. The Minister makes that alteration by order to be laid upon the Table. It is true to say that the original Act of the National Health Insurance has been entirely altered and would not now be recognised as being the law prevailing today. The alterations therein have been effected by orders laid upon the Table," and he asks that this Committee should be set up so that closer examination would be made of those orders, so that possible departure from the intentions of the legislature should not be made without such matters being reported to the Seanad.

Senator Comyn went a stage further when he said: "Acts of Parliament passed here have even gone so far as to authorise a Minister to ignore the law of the land." I would like to call attention to the fact that Senator Comyn qualified this statement later on by saying: "I do not think I have examined one set of rules." That seems a strange preparation for such a drastic denunciation of these rules and orders. Speaking not as a lawyer but as a layman I doubt if it is accurate, in fact I think it is entirely wrong to say that the statutes can be altered or varied by orders. I think I am on safe ground in suggesting that if an order does conflict with the existing statute law it is ultra vires and is a matter for the courts. If I am right in that contention I think that one of Senator Johnson's weightiest arguments in favour of the setting up of this Committee goes by the board; in other words, if one of his objectives—it seemed to be the objective at least of the Senator who seconded him, that such a committee should be set up in order to detect whether a Minister or a Department overrides the law by an order—is unsustainable, then I say one strong argument goes by the board. In all these general allegations of this kind not one single instance was quoted to prove that the contention was correct.

Apart from that consideration, apart from regarding the Committee as a watch-dog of the sanctity of the statute law against the unauthorised interference of Departments, the only other consideration that can be urged on behalf of it is the elucidation of these orders so that members of the Seanad may be quite clear as to what their powers and meaning are. But I wonder if a Committee of this House, representative of different parties, as it would necessarily be, would be an effective body for that purpose. The one essential thing, if the decisions of such a committee were to be of useful guidance in such matters, would be the agreement of the members upon the interpretation of an order, and is that likely in the present state of parties? My experience of committees representative of different parties in the House is that when party issues arise there is always a rigid distinction between the interpretations which the different parties take.

For instance, supposing some order were issued dealing with the collection of land annuities, I wonder if it would be possible, say, for Senator Moore and Senator MacLoughlin to come to an agreement upon the matter. That is perhaps an extravagant illustration but it is an illustration showing how lacking in real value the report of such a committee would be in guiding Senators as to the meaning of an order. But Senator Johnson indicated that in the matter of these reports which such a committee would issue the members of the committee would not be dependent upon their own resources but would call in Department experts to help them to ascertain the intentions and the purpose of these orders. It seems to me that that would resolve itself into a report, really drafted by an official of the Department responsible for the order, which would simply be sponsored by the committee itself. If that is all that is required for elucidating and making clear certain orders, it seems to me that that would be much more efficiently done by the Department officials responsible for issuing the orders than by a body of Senators, largely unskilled in the construing of these things.

In connection with the Expiring Laws Continuance Bill, Senators will remember that a Memorandum was issued with short explanatory notes as to the meaning of each statute which was expiring and which was to be continued by the Bill. If that is all that is required, if that is the real purpose of Senator Johnson's motion, it seems to me that the setting up of this committee would not be the most expeditious method of attaining that end. For these reasons, and not out of a sheer desire to oppose what Senator Johnson has put forward, I am taking up this attitude of opposition to his motion, I believe that such a committee would not fulfil any useful purpose, might possibly be a source of mischievous and diverse interpretations of orders, and might involve us in discussions as to the different reports which such a committee would issue upon different orders. Further, because any elucidation that is required, in my opinion, can much more efficiently and much more quickly be done by the Department responsible for issuing the order, I have taken up my present attitude.

Remember that the task which this committee would have to undertake would not be a very light one; it would be a very formidable one. On the day that this motion first appeared on the Orders of the Day there were over two pages referring to orders laid on the Table. They may be important or they may be formal; they may be very far-reaching or they may be purely technical, but the task which this committee would undertake, if the motion was passed, would be to examine all orders and regulations made by a Minister. It could not simply select one here or there and say: "This is important and this is unimportant." Such a committee would have to investigate and carefully peruse each and every one of these orders, and so far as I can see that is a task which would involve very protracted sittings and very exacting attention from a very seriously-minded body of Senators, and possibly it would result, as I have indicated, in very little useful work. For these reasons I am opposing the motion, and I regret that some more useful work could not be suggested for a Committee of the Seanad.

Mr. O'Farrell

I am afraid that Senator Milroy's speech is suggestive of a strong disinclination for any sort of work that could possibly be avoided. Presumably he has given very serious and thoughtful consideration to this motion since it first appeared on the Order Paper, and after all that care and thought he has come back and solemnly announced that for one reason in particular—as the work would be excessive—he cannot see his way to vote for the motion. The motion is merely a suggestion for giving practical effect to the procedure by which statutory orders and regulations are laid upon the Table of the legislature. Presumably there would be no provision for the laying of these orders and regulations if it was not important that they should be at the disposal of members of the legislature for examination, and, if necessary, for annulment. They are undoubtedly legislation by regulation, otherwise there would be no real object in laying them on the Table of the House. In theory they are supposed to be a protection for the rights of the legislature in regard to legislation which devolves on Ministers, but in actual practice we know what happens—that what is everybody's business is nobody's business. Nobody perhaps feels that it is his particular duty to examine these rules, orders and regulations, and, if necessary, to move a motion for their annulment. They are laid in dozens on the Table of the House. Some of them may have far-reaching consequences. It is the bounden duty of members of the legislature to see that these are examined and, if necessary, that a motion for annulment is moved. But you cannot hold any individual responsible.

The motion suggests that this House should appoint a committee whose task it would be to examine these orders and regulations, and if for any particular reason they thought it necessary that they might report to the House in regard to some of them regarding their effect. There is no necessity at all for agreement amongst the members of the committee in the event of party issues entering into it. They can agree that it is not necessary to report on a particular order, an order on which there has been disagreement, to the House, but any one or more members of the committee can, if it is thought desirable, put down a motion for the annulment of the order at least for the purpose of discussing its effects. The real effect of passing this motion would be that the Seanad, or a section of it at least, would make itself acquainted with what is being done by way of legislation through orders and regulations. We are not doing that at the present time; it is too much for any one member of the Seanad to take upon himself, I suppose. It certainly is a task that members of the Dáil in the main feel that they have no time for.

Arguments are advanced from time to time as to the necessity for a Second Chamber at all. In my opinion, this is certainly the kind of work that a Second Chamber should do, to be able to inform their colleagues in the House if necessary as to the effect of these orders. All sections would be represented on that committee, I presume, and in that way all sections would, through one or more of their members, be acquainted with what was being done as legislation through regulations and orders. Senator Milroy talked about the large number of these and the vast amount of work that would be involved in their examination. It does not require any extraordinary intelligence for a committee to see at a glance that very many of these orders would be of a very formal and routine nature and that they did not require any more than a mere cursory examination. Quite obviously they need not go into them. There are orders, though, of a very important character, and to these they would, as sensible people, devote special attention and, if necessary, report to the House. But in my opinion the principal effect of the motion would be to enable us to do in a businesslike way what we are supposed to do as individuals and what we do not do, rightly or wrongly. I make no apology for not doing it myself.

I admit that I do not do it and I admit I should do it, but I think we ought to have a way of spreading the work in matters of that kind, and I do hope that no pernickety considerations will prevent the Seanad from passing this motion. I have heard no really effective argument made against it. Certainly it is worth the experiment, and I do hope that the general sense of the House and their desire to discharge their duties as members of the Chamber will enable them to carry this motion.

Mr. Brown

I am entirely in sympathy with the idea that underlies this motion. My difficulty is to see how it could really be effectively carried out. Senator O'Farrell did not define with accuracy what the motion is. It is not that this House should appoint a committee; it is that it should be an instruction to the committee which is to revise our Standing Orders that they should make a Standing Order which would have the effect of establishing a committee of this kind, and really my difficulty is to see what Standing Order you could draw which would effectively carry out the idea that Senator Johnson has in his mind, that is, to find the test which is to be applied to any particular regulation in order that it might be reported to the House.

There are two kinds of regulations under our Acts of Parliament. There is the one that requires our approval. That comes here as a matter of course and we deal with it. The Rules of the Supreme Court, the Circuit Court and the other Courts come before us without being laid on the Table at all, because they require our approval to make them valid. Then there is the other class to which the Senator's motion is intended to apply—regulations made under a statute which are to have the effect of a statute if they lie for twenty-one days on the Table of each of the Houses without a motion being carried to annul them. Those are the kind of regulations to which the Senator's motion applies.

There are two kinds of objections to regulations of that kind which might be made and would be made before this committee if it were set up and got to work. The first is that the regulations are ultra vires, or some of them, or any one of them; that is, outside the intention of the Act, and outside the power of the Minister to make; that is, ultra vires the statute. The other is that the regulation, although intra vires, although properly within the Minister's power to make, is not an appropriate one. As to the first of those objections, that the regulations are ultra vires, or that some one of the regulations is ultra vires. I very much doubt if this House is the proper tribunal to decide that. I rather think that it is really a question of the construction of the statute itself, that it involves the construction of the statute itself, and that it is a proper question to be dealt with by a court of law. A fortiori, it is not a question which the committee, if it were set up, would have power to or could appropriately decide. Therefore, I think that if the objection to the regulation was of that nature it is not one that could be appropriately dealt with either by the committee or by the Seanad itself. As far as the other is concerned, of course, it would be absolutely within our power to deal with it. But here again, what test are you to apply, what kind of Standing Order could the Committee on Standing Orders make which would create a test? Is it to be just the test that the majority of the people think that the regulation is not a proper one, or is there to be some principle laid down in the Standing Order? I submit that there ought to be, and that it ought not to be left haphazard to the particular committee for the time being. I feel that this would really not work effectively.

I wonder if there could not be some other way of arriving at the very wise object that the Senator has in view, some way of getting us more information than we get. These papers are laid on the Table of the House. Would there be any way of getting in a memorandum with each of these regulations, some sort of short but sufficient description of what it is, so that anyone of us who get notice of a set of regulations being laid on the Table would know what they were about and it would put him on notice, so that if he were interested, as many of us are, in subjects which we know ourselves we could at once look the thing up, and if we found that there was anything objectionable in the orders themselves as appropriate orders we could then bring the matter before the House? But I do feel a very great difficulty in voting for the motion, although I am entirely in favour of what underlies it, because of the difficulty of carrying it out.

Sir T. Grattan Esmonde

Senator Johnson has raised a very important matter. The question is exercising many minds in various countries, as to the tendency which is growing up more and more latterly of Ministerial interpretation of legislation. Notwithstanding what Senator Brown has said, I am in favour of the motion and for this reason: I am not tied to any method of achieving some protection for the rights and liberties of the common citizen. I am not tied to any details of method. But Senator Johnson's proposal seems to me to carry us a step further. The important thing is for this Seanad to approve of the principle of the Oireachtas' or the Parliament's pre-eminence in matters of law. I have felt, because I have studied this question somewhat deeply, that we are at the opening of a very long vista. There is the Parliament or the Oireachtas of the Twenty-Six Counties at this end, and on the horizon is bureaucracy, and the rights and the liberties of the people follow that vista in a decreasing succession. It seems to me that this motion carries us some distance along the road. The supremacy and the rights and liberties of Parliament are very important. In many countries people have laid down their lives to support them. But the liberties and the rights of the common citizen are very much more important than the liberties and the rights of Parliament. I am not tied to methods. I think we should check as far as we can Ministerial interpretation of legislation. We should do what lies in our power to make the ordinary citizen protectable by the courts, which really interpret the law. It is enough for the Seanad to certify its opinion in favour of this principle of the liberties and the rights of the ordinary citizen. As to whether Senator Johnson's method is suitable, I have no opinion, but at all events, it carries us some distance along the road we should travel, and if the Senator carries his motion to a division I shall certainly support it.

Mr. Wilson

I have been listening to Senator Esmonde with a view to getting instruction on this matter. The Senator has not replied to Senator Brown's point. This committee would take cognisance of objections, but will the objections be ultra vires or intra vires? Senator Esmonde has not enlightened me on the question whether a committee of that sort is capable of dealing with an Order which it considers ultra vires, or which it considers intra vires. For that reason, while I am in sympathy with the idea that these Orders should be investigated, I am doubtful whether this committee would be the proper method of doing so.

Colonel Moore

Senator Wilson has asked a question which seems to be simple enough. He wants to know whether this committee will be ultra vires or not.

Mr. Wilson

No, whether its decision will be on the point whether an Order is ultra vires or intra vires.

Colonel Moore

That is not proposed.

Why have a Parliament at all?

Mr. Kenny

I mean to say with relation to existing statute law how far that order is outside or within the particular statute that is affected by the order. You must have a Department in order to administer statute law, but the Minister in making an order to carry out the intention of the statute will certainly have to consult his legal advisers, because it is a matter that may ultimately come for decision before a law court. That being so I think the suggestion made by Senator Milroy—that accompanying each of these orders there should be a note framed by the Minister or his Department—and I presume also with the assistance of his legal advisers, setting out their purpose and effect, is a good one. That would save a great deal of research work on the part of anyone undertaking the task of interpreting such an order, according to his own light and experience. Anyone taking up the Order Paper and seeing the number of Orders that are laid on the Table from week to week will know that some of them are so worded that it would be necessary to go to a great amount of trouble reading up the various sections and tracing the various Acts of Parliament that come within the ambit of these orders. If that work is elucidated and lightened for him by a concise minute or note a member might then, if he so desired, go further than what is contained in the Ministerial note. It would break the back of the research work as the note would set out what would be the effect of the order. It would enable a member to see at a glance what the intention was, and if he thought that the intention was not warranted by the wording of the Act he may go further and investigate the matter.

I think that information would be sufficient for the ordinary Senator or Deputy, and would enable him to perform his duty, which, I admit, is the duty of every individual Senator and Deputy to enable them to perform the duty in such time as is reasonably at their disposal. There is not much time available. The fact is, I suppose, that no member of this House has given very much time to the investigation of these orders. No matter what one's disposition may be, there is not time at the disposal of members to do their duty fully in this matter, and I think the suggestion made by Senator Milroy would meet the case better than the proposal in the motion.

Mr. Farren

It appears to me that most of those who have spoken against this motion really do not understand what the motion aims at. In my humble opinion, the motion aims at doing exactly what Senator Brown says it may not do. I do not think that these legal questions arise at all. The question of whether an order is ultra vires or intra vires does not arise at all. In my opinion the motion simply means that the Seanad should give an instruction to the Committee of Procedure to prepare a Standing Order to the effect that a Standing Committee be appointed for the purpose of examining these orders, and if they think necessary of reporting to the House. The question as to whether an order is ultra vires or intra vires does not arise at all. As a matter of fact, the question that does arise is this: that we all know that owing to the modern trend of legislation extraordinary powers have been given to Ministers to draft orders and make regulations in conformity with our Act of Parliament for the carrying out of it. We all know that has been the tendency in modern times, and in order that the members of the Seanad will have an opportunity of knowing exactly what is being done by way of order or regulation, this motion has been put down so that it will be somebody's business to examine these orders and, when they think necessary, to report to the House. The motion simply means that we are going to departmentalise the work of the Seanad, because this particular work of examining orders is everybody's business, and therefore nobody's business.

All that I will say on that is this, that some members take it very easy in this House. When I hear all the talk that there is about this being a colossal job, it reminds me of what I hear so often about the unfortunate artisan with his restriction on output. But there is no talk at all about the restriction of output in the Seanad. All that this will mean is the giving of a few hours' work to the examination of these orders, and are we to take it that members of the House are not prepared to undertake that task? I am perfectly satisfied that if the motion is passed it will be found that there are members of the House who are prepared to take on that responsibility, and to do this particular job. All that it would mean is getting the work done here in a businesslike way, having the order, when made, examined by a Committee of the House, the members of which will report to the House in regard to these orders when they think it necessary to do so. I am sure that no member anticipates for a moment that anyone is going to examine these orders with a microscope for the purpose of trying to pick holes in them. The object of setting up the Committee is that as occasion demands it the House will be put in possession of the information that it ought to have so that it may exercise the authority it possesses.

The House has passed numerous Acts of Parliament which give power to the Minister to make orders and regulations, but while we do that we safeguard ourselves to this extent, that we retain the power in our own hands to annul those orders and regulations made by the Minister under the Act of Parliament if we think that the orders or regulations made are not satisfactory or in order. If we are to retain that power of annulling these orders, then surely we ought to make provision to have them examined, or else the whole thing is a farce. What is the use of insisting on the right of being able to annul orders or regulations within twenty-one days after they have been made and laid on the Table of the House if we do not also insist on the right of taking steps to examine them and see that they are in order? What this motion aims at is that orders made under Act of Parliament should be examined by the Committee set up. If the Committee found that some of the orders made, while they might be strictly legal, were not desirable, or were not in conformity with the Act of Parliament, then it would report to the House. There is no question at all of bringing the lawyer's mind to the examination of any of these orders. It is simply a question, in the first place, of the protection of the rights of the House, and in the second place of the rights of the citizen, and for that reason I hope the House will pass the motion.

Mr. Douglas

With much of what Senator Farren has said I am in agreement, but I am not in agreement with his conclusions. It is impossible not to admire Senator Kenny's implicit confidence in the accuracy of every Order that comes before this House, but I am afraid it is not shared by very many. I think that Senator Johnson in bringing forward this motion has raised a point of very real importance. I do not know—I am simply speaking for myself—how many of these orders are read by members of the House. Personally, I look through the list. If any of the Orders deal with matters that I know anything about, I get a copy of them and read them. Those relating to subjects which I do not feel competent to deal with I do not read at all. I think it is the duty of every member to look through the list, and in particular to read those Orders which we have the power to annul or to prevent coming into force. Senators, I think, should read them and attend to them. If it is not possible for every member of the House to do that, I think it is possible for some members to do it. This House is divided into parties more or less, and amongst them it should be possible to get some of their members to go through the list and examine these Orders. To that extent, I am in agreement with the arguments put forward in support of the motion, but with regard to the conclusions I cannot see that the delegating of this duty to a committee, thereby giving an excuse to every member not to read any Order, is the way to deal with it.

What is your committee to be? There are members of the Cumann na nGaedheal Party in this House, and I have a kind of feeling that they have a mild tendency to approve of Orders made by Ministers. Senator Colonel Moore, if I may say so, has the mild tendency always to disapprove. I am putting the point as mildly as I can. It seems to me that if you had a majority of the members of the particular Government of the day on the committee you would always get a majority that would not be willing to draw attention to the matters concerned. I cannot see for the life of me what you are going to gain by delegating what is the duty of every member of the House to a committee. At the same time, I do think that the matter ought to be considered to see whether there is not any better way of bringing the problem before members of the House. At the moment we only get this list on the printed Orders of the Day when we come to the House. We get it at a time when we are busy, and when there are urgent matters before the House. The tendency, therefore, is not to read the list through.

I think that perhaps some provision could be made for dealing with the matter. Probably if the Cathaoirleach considered it himself he would find that he has power to do a good deal more than is done at present in the matter of calling attention to orders that are laid on the Table of the House. I think myself that special attention ought to be drawn to every order that is laid upon the Table of the House, particularly those orders in respect to which the House has special powers. If special attention were drawn to these orders and notice to that effect was sent out with the preliminary orders which Senators receive, then members would be in a position to take special note of them. For instance, attention could be drawn to an order which the House has power to annul or to prevent coming into force within the period of twenty-one days. I know that if I got such a notice I would certainly pay more attention to it than if I were simply to see a list here containing a great number of orders. Personally I am opposed to the idea of getting rid of the awkward responsibility at present placed on members simply by saying that there is a standing committee to look into these matters. Suppose that that standing committee is appointed now, it would I think be excellent on some subjects and useless on others. I feel that if I were a member of that committee I would be quite incompetent to deal with many of these orders, while with regard to others, about which I know something, I might be a useful member to the committee. The idea of appointing such a committee and delegating to it what is the duty of every member of the House is, I think, wrong in principle.

Mr. Johnson

I am astonished at the criticism that has been made with respect to this proposal as well as at the line that criticism has taken. I admit at once that it is a valid argument to say that the duty of examining every order devolves equally on every member of the Seanad and the Dáil just as it is the duty of every member of the Dáil and Seanad to examine every Bill that is brought before them. But, at least, in regard to Bills they are brought to the notice of Senators by argument in the Seanad in respect to their content and purport. It may be that we do not read the Bills through and through on every occasion, but at least we are able to hear an explanation by the Minister as to what the Bill is intended to do. We are able to discuss it and to have our interest and perhaps our doubts aroused by the discussion that has taken place on the Second Reading of the Bill. In regard to orders and regulations they are, if I may say so, minor enactments, and they do not come before us in the definite way that Bills do. It is equally of course the responsibility of every member to read them, but they are not brought before the House for positive approval in the same way that a Bill is. Consequently they become, in effect, statutory orders which may be enforced in the courts. They become obligations upon every citizen without any consideration whatever by even an individual member of the House. That is the point.

It is well enough to say that there is a diffused responsibility, but it is because it is so diffused, because it does not come specifically and definitely before the individual Senator, that there is no special responsibility in regard to it. I think, as a matter of fact, it is a business-like arrangement, and certainly in accord with the modern tendency towards specialisation and is not unreasonable to place upon a given number of members of the Seanad the duty of examining these orders and regulations without, as I say, removing the individual responsibility at all. The individual responsibility still remains, and perhaps will be no more effective in the future than it has been in the past. But, at least, the likelihood of the purport of such orders may be brought specifically before the Seanad.

The Local Government (Temporary Provisions) Act contained schedules, and the schedules became part of the Act. The Act states:—

"(1) From and after the passing of this Act the relief of the poor in a County to which an existing County Scheme relates shall be administered under and in accordance with such existing County Scheme, and the law relating to the relief of the poor in that County shall be deemed to be and is hereby altered or modified in such manner and to such extent as is necessary to give full force and effect to such existing County Scheme."

There is a later provision which states:—

"The Minister may by order do any of the matters following, that is to say:—

(1) apply to any public body established under or in pursuance of this Act or any county scheme any existing enactment relating to county or district councils or boards of guardians with such modifications as he shall deem necessary;

(2) make such adaptations of any existing enactment relating to any matter dealt with or affected by this Act as appear to him necessary or expedient for carrying into effect this Act,"

and so on.

Nobody will doubt that the schemes enacted under the 1923 Act have been modified by order. As a matter of fact they have been brought into conformity with the model scheme. I am not taking the line that Senator Sir Thomas Esmonde has taken. I do not think that the charges regarding bureaucracy are sustainable, or that the tendency towards legislation by administrative orders can be avoided. I think that with modern complications it is necessary, and even most valuable, in maintaining the authority of Parliament that the Act itself instead of giving all the details of the possible variations that may be required in the carrying out of the Act, shall give power to the Minister to make regulations. If, for instance, all possible variations of the application of the Act in the various counties owing to new conditions that might be imagined were put into the statute itself every Bill of importance would be so voluminous that the Seanad would be overwhelmed and would not be able to deal with them, and they would be passed en bloc. It is more to the advantage of control by the Legislature that the Minister would have power to issue by order regulations to give effect to the Act, provided that the Legislature keeps a watchful eye over the orders and regulations. It is only because of the necessary tendency of modern times towards legislation by administrative orders, which is, I think, inevitable in the complex circumstances of modern times, that I feel it absolutely imperative to maintain the authority of the Legislature that there should be constant vigilance in regard to orders we are empowering a Minister to put into effect. If they did not matter we should not ask them to be laid on the Table.

As to the question of ultra vires or intra vires, I do not see how it concerns or is affected by this proposal. As some Senator has pointed out, whether it is ultra vires or intra vires is a matter at the moment for the individual Senator. If it is a question of it being ultra vires, surely it is right it should be brought to the notice of the Seanad. I admit candidly that it is not desirable the Seanad should take upon itself the duties of a court and expound the law and declare whether a certain regulation was or was not ultra vires, but if the question arises as to its being ultra vires, and the question is publicly explained in the House, at least there is an opening up of the question, and the responsibility will lie upon whoever feels himself aggrieved by the order. But as to those orders which are intra vires, within the power of the Minister, my desire is that the intention of these orders should be made known to Senators, but it should be something more than a mere statement—“under the Factory Act, so and so; regulation so and so; affects so and so”—that is not enough. The intention of the orders should be brought before the Seanad, and if then any individual Senator thinks it is desirable to test the opinion of the House as to whether it conforms with the wishes of the House the necessary action can be taken and a motion made calling for its annulment. Since the 1st January this year there have been laid on the Table 83 statutory orders or regulations which would come within the scope of this proposed committee. There are 23 that are Defence regulations, and deal with Army administration, and are purely formal and internal. Fourteen relate to Civil Service examinations, and are formal matters not raising any questions. Six are National Health regulations, and four are Agency Orders, transferring authority from one Minister to another. I am not sure whether they can be annulled by action of the Seanad, but there may be two or three, or perhaps a dozen, that might have been brought before the Seanad.

For instance, there is one order making it possible for young persons between sixteen and eighteen years of age to work at night in the Carlow sugar factory. That is within the power of the Minister, but under an Act passed many years ago. It might conceivably be the wish of the Legislature in this year to prohibit the employment of young persons throughout the night in a factory. If that, which is conceivable, were in fact the will of the House it would be the duty of the House to annul that order and prevent the doing of such a thing.

Mr. Douglas

Has the Seanad power to annul that Order?

Mr. Johnson

I am not positive, but I am practically certain that it has. I do not think there is difficulty in framing a Standing Order. I have not been able to understand where the difficulty arises. I have considered the objection made privately and publicly, and frankly I cannot understand why there should be an objection. The point has been made that the Seanad has responsibility. To put the matter frankly, if there is any legitimate function for a Second Chamber, if there is any place for a Second Chamber in the Legislature, surely this kind of work ought to be done by that Second Chamber. It is reasonable, it is formal, it is a kind of research work, which does not involve Party passion or the rising or falling of a new Government. It does not involve any of these things. It could be done in a simple manner without raising any of these high political feelings, passions or objections. It is letting the Seanad do a class of work which it can reasonably do with advantage to the community, for when a report is made on the effect of an order it is not coming to the Seanad alone, but it is also coming to the Dáil, it would be made public so that the public will know what is being done by the Minister in a matter by which they would be bound in their future lives.

I think the sentiment of the Seanad is in favour of the contents of these orders being brought to their notice. The only point then to consider is whether this method of doing it is effective. I contend that it is. Again, let me say that my motion is simply an instruction to the Committee on Procedure to do a certain thing. If after consideration it is found impossible to frame a Standing Order of the kind proposed, if a committee such as the Committee on Procedure finds it is not practicable, it can report to the House, and this work will not be accomplished until the question is further examined. I hope the Seanad will accept the motion.

Question put.

The Seanad divided: Tá, 15; Níl, 19.

Tá

William Barrington.
R.A. Butler.
Michael Duffy.
Sir Thomas Grattan Esmonde.
Thomas Farren.
Thomas Foran.
Thomas Johnson.
Thomas Linehan.
Colonel Moore.
Joseph O'Connor.
Joseph O'Doherty.
M.F. O'Hanlon.
James J. Parkinson.
Siobhán Bean an Phaoraigh.
Séumas Robinson.

Níl

Sir Edward Coey Bigger.
Samuel L. Brown, K.C.
Miss Kathleen Browne.
Alfred Byrne.
Mrs. Costello.
John C. Counihan.
The Countess of Desart.
James G. Douglas.
Michael Fanning.
Henry S. Guinness.
Right Hon. Andrew Jameson.
Cornelius Kennedy.
Patrick W. Kenny.
Francis MacGuinness.
Seán Milroy.
Sir Walter Nugent.
Bernard O'Rourke.
Dr. William O'Sullivan.
Richard Wilson.

Motion declared lost.

Seanad Éireann debate - Thursday, 28 Nov 1929

Ministerial Orders and Regulations. - Proposed Examining Committee.

Cathaoirleach

Cathaoirleach

Cathaoirleach

Cathaoirleach

Tá

Níl

Seanad Éireann debate -
Thursday, 28 Nov 1929