The statement which I have to make on this matter had better be prefaced by the reading of certain letters which passed between the Clerk and myself. The first is dated 3rd May, 1934, addressed to myself from the Clerk. It reads:—
"I have this morning had a long talk with Mr. Malone as regards the preparation of the minutes and the form of the report of our Committee on Procedure."
Perhaps I should say, for the benefit of those members of the Seanad who are not familiar with the personnel of the staff, that Mr. Malone is the very able assistant of the Clerks and is specially informed on matters of procedure. The letter continues:—
"He has told me something which I would say quite frankly I did not know before and that is that minority reports are unknown to parliamentary practice. Next Wednesday, when we meet at 11 a.m. for the purpose of giving final consideration to the chairman's draft report, it is open to you as a member of the committee to submit your draft report. The chairman's draft report must be submitted to a vote and if there is a majority in its favour your report cannot be considered. It will, however, be printed in the minutes. It cannot be printed as a minority report. If there is not a majority in favour of the chairman's report your report will then come up for consideration. I think it is due to you that I should make this clear to you at the earliest possible moment. I am not writing to Senator Colonel Moore and Senator Mrs. Wyse Power as I have no reason to believe that they contemplate drafting a report.
Yours sincerely,
D. J. O'Sullivan,
Clerk of the Seanad."
I replied on 4th May as follows:—
"Dear Mr. O'Sullivan,—I received your letter this morning. It places me in a difficulty. The chairman has ruled and the proceedings have been conducted on the assumption that one or more minority reports might be made if a generally agreed report was not found to be possible. Now I understand from your letter that a different procedure must be adopted.
I am going away to-morrow morning and had intended to spend the first day or so of my holiday in drafting a report. It will be waste of time to do so in the new circumstances.
I shall probably write you from Kerry after I have considered the new position. — Yours sincerely, (Signed) Thomas Johnson."
I wrote again on 7th May from Parknasilla, Sneem, as follows:—
"The Clerk of the Seanad.
Dear Mr. O'Sullivan, —In reference to your letter of 3rd instant, by which you inform me that 7lsquo;minority reports are unknown in parliamentary practice'—and that ‘next Wednesday ... the chairman's draft report must be submitted to a vote and if there is a majority in its favour your report cannot be considered—it will, however, be printed in the minutes. It cannot be printed as a minority report. If there is not a majority in favour of the chairman's report, your report will then come up for consideration.'
This change of procedure is a complete reversal of the ruling of the chairman, several times repeated, that it would be open to the members to make one or more minority reports, and it was on that understanding they have acted.
In view of the new decision, I assume it will follow that neither the amendments I submitted to the chairman's original draft nor any minority report I might wish to make will be presented to the House. (I do not understand how a report I might put forward can be printed in the minutes if in the event of the chairman's report securing a majority it cannot be considered—in any case, I shall be unable to attend the meeting.)
The procedure of the committee differs so much from my view of what is appropriate that I feel I ought not to remain a member, and hereby beg formally to tender my resignation from the committee.
I wish, however, to have placed on record my conclusions regarding the subject matter of the present inquiry. They are as follows:—
A breach of the privileges of the Seanad occurred in July, 1933, when the Minister for Defence, without consultation with, or the concurrence of, the Cathaoirleach gave instructions that persons, other than members of the Dáil and Seanad, wearing the blue uniform shirt of the A.C.A. be prohibited entry to Leinster House— the meeting place of the Seanad.
A breach of privilege occurred in February, 1934, when the Minister for Defence issued instructions to the military guard to prevent entry to Leinster House of persons bearing authorised tickets of admission to the visitors' gallery of the Seanad.
A breach of privilege occurred when the Clerk of the Dáil, with the concurrence of the Ceann Comhairle, instructed the Superintendent of the Oireachtas that visitors wearing the blue shirt uniform were not to be admitted to Leinster House even though they had cards of admission to the Seanad.
I do not, however, consider that the facts regarding such breaches of privileges warrant the statement made in the Seanad by the Cathaoirleach when the subject was first brought to the notice of the House, viz: that there is not a shadow of doubt that ‘the privileges of this House have been outraged' (Seanad Report—column 454—21st February, 1934). It is unusual for judgment to be announced in such emphatic terms before inquiry begins.
Nor can I agree with the statement of the constitutional position set forth by the Cathaoirleach on the same occasion (column 451) as follows:—
‘As regards the constitutional position, Article 20 of the Constitution provides that each House of the Oireachtas shall make its own rules and standing orders, with power to attach penalties for their infringement. Article 25 of the Constitution provides that sittings of each House of the Oireachtas shall be public. Standing Order No. 70 of the Standing Orders of the Seanad, which was made pursuant to these articles, provides that visitors may be introduced by Senators to such places as may be reserved for them by me and upon such conditions as I may prescribe. It follows, therefore, that no Minister of State and no other person whatever has power to debar from access to the Visitors' Gallery of this Chamber, which is the place reserved for them by me, visitors only introduced by Senators who comply with such conditions as I may prescribe. Anyone who so debars them or attempts so to debar them, commits a breach of privilege.'
Such a conclusion stretches the power of the Seanad to legislate by means of standing orders far beyond what any reasonable interpretation of its constitutional authority would permit.
It is in my opinion erroneous to state as did the Cathaoirleach (column 452) that a person has an undoubted right under Article 25 of the Constitution to be present at a meeting of the Seanad.
As the foregoing statements of constitutional rights are likely to be invoked in the future in other circumstances I desire that it may not be said they were accepted without question.
The problems that have been brought to an issue in this case have arisen from these circumstances:
(1) The two houses of the Oireachtas jointly occupy the same building, access to which is by a single entrance;
(2) A joint staff serves both Houses and each House is empowered to make rules and standing orders, but there has not been either by legislation or by definite detailed agreement, a demarcation of the respective authority of Dáil or Seanad jointly or separately in respect to staff or in relation to the Executive Government. No machinery exists for determining disputes if such arise as to jurisdiction or authority.
(3) Ever since 1922 a certain tension between the officials of the two Houses has been the normal condition; similarly, during the same period, with inexcusable frequency, Ministers have acted as though the existence of the Seanad had been overlooked or, quoting the Cathaoirleach's stronger word, ignored.
In the light of these conditions the conduct of the Minister for Defence in taking no thought of the Seanad when, with the concurrence of the Ceann Comhairle representing the Dáil alone, he issued instructions to debar from entry to Leinster House persons wearing the blue shirt uniform, assumes a different and less challenging aspect.
It must also be noted, as shown by the evidence of Senator Miss Browne and the correspondence between her and the Clerk of the Seanad that the attempt to secure admission to the gallery of the Seanad of ‘two persons wearing the blue shirt uniform of the League of Youth' was intended as a test of the Minister's authority.
Had there been the degree of collaboration between Seanad, Dáil and Executive which their complementary functions and joint occupancy of the same building would appear to require if the national affairs at the centre are to be conducted without undue friction, the Cathaoirleach would not have issued cards of admission in the circumstances, (there being a week to spare between the date of issue and the meeting of the Seanad) without informing the Ceann Comhairle and the Minister responsible that he proposed so to do and pay heed to any observations either of them might make on the matter. Instead, the tickets were issued first, and the Ceann Comhairle and the Minister afterwards informed of the fact. Had the design been to bring the several authorities into conflict its success then was assured.
There remains one other observation to be made. The Cathaoirleach's Draft Report charges the Minister for Defence, in effect, with having deliberately misled the Seanad and attempts to prove the charge by quoting freely from the Minister's evidence. There was an obvious and simple way of ascertaining the truth, viz: by calling the Chief of Staff as a witness to testify as to what message he gave to the Minister over the telephone on February 21st. The committee in its wisdom refrained from calling the Chief of Staff for reasons which are creditable and probably compelling. But having so resolved it is surely reprehensible that a responsible committee of one of the Houses of the Oireachtas should charge a Minister of State with deliberately deceiving the House unless the evidence were absolutely irrefutable and no alternative explanation were conceivable.
(Signed) Thomas Johnson.
7th May, 1934."
Anything I may say in amplification of that will not change the character of my observations. Events that have happened since, and reading all the detailed evidence of the report, confirm me in the views and add emphasis to any view I mildly expressed in that memorandum. I want to remind the House of the beginning of this affair. Senator Miss Browne raised the question on the 21st February and drew attention to what had happened, and the Cathaoirleach said immediately afterwards:—
"If Senator Miss Browne's facts are correct a breach of the privileges of this House of the Oireachtas has, undoubtedly, been committed."
Later on, in the same evening, the Cathaoirleach recounted the circumstances and, as reported on column 454 of the Official Debates, after reading a letter which had been sent by Frank Aiken, Minister for Defence, to the Ceann Comhairle, the Cathaoirleach said:—
"This makes it quite clear that a breach of privilege has been committed by the Minister. Fortunately, there are ways and means, and very definite ways and means, of upholding and enforcing the privileges of this House."
A little further on the Cathaoirleach said:—
"There is not a shadow of doubt that the privileges of this House have been outraged. Egress and ingress to our House—an essential part of the Oireachtas—have been prevented and so I feel very strongly that strong and active measures must be taken to protect the privileges and rights of this House."
I emphasise the words: "There is not a shadow of doubt that the privileges of this House have been outraged." Subsequently the committee was directed to inquire into the matter under the following terms of reference:—
"That the matter of the exclusion by military policemen of visitors to whom admission tickets had been issued by the Cathaoirleach for the sitting of the House on Wednesday, 21st February, 1934, be referred to the Committee on Procedure and Privileges for inquiry and report."
It is provided in the Standing Orders that the Chairman shall preside at the meeting of the committee. In view of the judgment delivered, as I say, in the phrase I have quoted, it does strike one as not in the usual manner of procedure, of judicial bodies, at any rate, that the judgment should be delivered before the inquiry has been made, and, as will appear from the printed evidence, the chairman of that committee assumed the role of prosecuting counsel.
The question to which I want to direct special attention is that a great part of the report is directed to matters which arose after the exclusion of the visitors from this House; that is to say, to the conduct, the alleged offence by the Minister in his statements to this House. It does appear from a reading of the evidence and the examination of the Minister and the report itself that that second offence—the offence by the Minister in his relation to this House, the proceedings that took place after the matter had been raised here—occupied a very prominent place in the minds of the majority of the committee and particularly in the mind of the Cathaoirleach. I submit that, in fact, it was beyond the authority of the committee to inquire into that matter in view of the terms of the resolution passed by the Seanad on 28th February—it was incidental, no doubt, but it certainly ought not to have been so large a part in the inquiry, and the Minister should at least have been apprised of the charge that was being levelled against him in the mind of the Cathaoirleach.
The question that I have touched upon in my memorandum regarding the constitutional position of this House as stated by the Cathaoirleach and as approved of by the committee, raises a somewhat different question, and I think it is worth the while of the House to ask itself whether it desires, in fact, to assert, as the committee does by implication, that a standing order made by this House under the powers given by the Constitution has the weight of a constitutional provision. That is what is implied in this statement by the Cathaoirleach that Article 20 of the Constitution provides that each House shall make its own rules and standing orders, that Article 25 provides that the sittings of each House shall be public, and a Standing Order, No. 70, of the Standing Orders of the Seanad, which was made pursuant to these, made under the powers given to it, provides certain regulations regarding the admission of visitors. Then follows the statement to which I take exception:
"It follows, therefore,"
because a standing order has been made regarding the admission of visitors to this House,
"that no Minister of State and no other person whatever has power to debar from access to the visitors' gallery of this Chamber...visitors only introduced by Senators to such places as may be reserved for them by me and upon such conditions as I may prescribe."
I am asking the House to consider whether it is making the claim that a standing order has as much weight as a constitutional provision and may even, as is implied here, override statutes and laws which may be passed by both Houses. I contend that the statement made by the Cathaoirleach does not "follow, therefore," from the provisions of the Constitution or the Standing Order.
There is presented in this report a detailed statement of the proceedings of the committee and the evidence heard by the committee. In the minutes of the proceedings of the 18th April there is printed a draft report. The minutes state:
"The draft report prepared by the Chairman was read a first time as follows."
The report is then given. In the later proceedings, beginning on the 25th April, there appear minutes of amendments, presumably and obviously to the Chairman's first draft, which were proposed, agreed to or amended. I do not want to be over particular in this matter, but one must understand that the proceedings at those meetings were somewhat informal. As I understood at the time, an attempt was being made to arrive at something like an agreed report. On looking through the report this morning, I find that much of what I thought was informal was taken to be very formal. I want to draw attention to the fact that the draft report, of which I have a copy, dated 18th April, is not identical with the draft report which appears in these minutes. Discussions took place and alterations were made, but, in view of the formal nature of this report, it is necessary to point out that the draft report of the committee, as circulated on the 18th April, is not in all its terms the draft report which is printed in this document. On one or two matters the changes are of such a nature as to alter the impression that one would get if there had been printed the draft report as originally circulated, which was the draft report of the Cathaoirleach. I am referring particularly to paragraphs Nos. 16 and 17. The changes made in the draft report, as printed, from the draft which I have in front of me are important inasmuch as the draft report, which was circulated, indicates a state of mind in reference to the Minister that was modified in the first draft report as printed. The minutes of succeeding meetings have reference to the draft report as printed. I am pointing out that the draft report, as printed, is not the draft report in its entirety which was circulated to members of the committee.