Vol. 19 No. 21
Government Amendment No. 1:—
Section 5, sub-section (4). To add at the end of the sub-section a new paragraph as follows:—
(c) any person to whom neither of the preceding paragraphs of this sub-section applies who is declared by an order made by the Minister for External Affairs to be an official representative in Saorstát Eireann of the Government of another country.
second the amendment.
This amendment is introduced for the purpose of meeting a point that was raised by Senator Milroy on the Committee Stage as to whether a commercial attaché and people of that class were covered by the text of the Bill as it stood. My opinion was that it was already covered, but to make assurance doubly sure we are prepared to agree to the insertion of this amendment. It means that when a person in such a position is declared by the Minister for External Affairs to be an official representative in Saorstát Eireann of the Government of a particular country, then the immunities that are indicated in the preceding paragraphs of the section with regard to diplomatic representatives will be granted to such person.
I take it that this amendment would not give the Government power to extend these immunities to the staff of a person such as is named in the amendment? Would it not be desirable that the Government should have such power if it wanted to exercise it?
I take it that each person can be individually mentioned in an order.
I would say that the amendment is confined to individuals and does not include staff.
My point was simply this: that while a person himself might be the official representative of a particular country, he might not be able to describe his staff as such, but the as these courtesies are being extende to the official representative himself power might also be taken to extend them to the staff.
The staffs might be purely local. It seems to me that as it stands you could mention individuals if it were found necessary to do so. I do not think it is necessary to extend this to the staff.
In the Bill as it stands, paragraph (a) of sub-section (4) of Section 5 deals with "the head of any diplomatic mission duly accredited to Saorstát Eireann, the members of the household of such head, and every member of the diplomatic staff of such mission" and so on, so that if this new amendment is confined "to any person" it cannot possibly include staff.
That is my point of view, but I do not wish to press it.
I think this amendment will be sufficient for all purposes.
Government Amendment No. 2:—
Section 5, sub-section (5). To insert before the sub-section a new sub-section as follows:—
(5) An alien who is ordinarily resident in Saorstát Eireann and has been so resident for a period (whether partly before and partly after the passing of this Act or wholly after such passing) of not less than five years and is for the time being employed in Saorstát Eireann or engaged in business or the practice of a profession in Saorstát Eireann shall not be deported from Saorstát Eireann under an aliens order or an order made under an aliens order unless—
(a) such alien has served or is serving a term of penal servitude or of imprisonment inflicted on him by a Court in Saorstát Eireann, or
(b) the deportation of such alien has been recommended by a Court in Saorstát Eireann before which such alien was indicted for or charged with any crime or offence, or
(c) three months' notice in writing of such deportation has been given by the Minister to such alien.
I second.
This amendment represents the draftsman's form of an amendment that was moved on Committee Stage by Senator Blythe. I promised to have the Senator's amendment examined by the draftsman.
The amendment meets my object.
I move amendment No. 3:—
Section 5. To add at the end of the section a new sub-section as follows:—
"(8) Whenever an order made under an aliens order is made in respect of aliens of a particular class or in respect of particular aliens, such order shall be published in the Iris Oifigiúil as soon as may be after it is made.”
I dealt with this on the Committee Stage. The proposal is to amend the section to provide that, whenever an order is made by the Minister under an aliens order in respect of aliens of a particular class or in respect of particular aliens, such order shall be published in the Iris Oifigiúil. If one is to take the Aliens Order of 1925 as typical of the kind of order that would be made, one finds a section such as this: “The Minister may by order impose on any alien or class of aliens such restrictions (either in addition to or in substitution for other restrictions imposed by this order) as to residence, reporting to the police, etc.” That means to say, that the Minister is going to have considerable power to deal with classes of individuals or with individuals. My amendment seeks to do the least possible that should be required of a Minister; that is to say, that if he is going to make an order under an aliens order to apply to a particular class of aliens the public should be made aware of it. It should not be a secret matter between the Minister and a class of aliens or an alien. We should know exactly what the Minister is going to do with the powers that are given to him. I find that Article 13 of the Aliens Order of 1925 provides:
The Minister may direct that any person or class of persons shall be exempt either unconditionally or subject to such conditions as the Minister may impose from all or any of the provisions of this Order.
There, again, we have a sample of the kind of power that is being given to the Minister: to make orders which are not to be laid before the Oireachtas and which, as I have said— unless we provide for publicity—may be a secret matter between the Minister and an alien or classes of aliens. It is undesirable, I think, that the Minister should have such powers. What I am seeking is that official notification should be given of the making of such an order, so that the public can be made aware of what is happening, in the Iris Oifigiúil.
I second the amendment.
On the last day I indicated the objections, from our point of view, to publication in the case of a particular person: that if you did mention a reason for the order, then the worst possible construction would be put upon it. I said then that if there were a number of reasons for which a person may be deported that it was possible—if there was publicity —it would be said, for instance, that he was deported for moral reasons or something of that sort: that at any rate the worst possible reason was likely to be attributed to him. The question is, could you give in each case the reasons? I feel that you could not. I feel there would be classes of cases in which the full reasons could not be stated. I promised on the last day that I would have this sympathetically considered and examined in the Departments concerned. That has been done, and there is very strong objection to this.
I would be prepared to go this far: to accept the amendment with the deletion of the words "or in respect of particular aliens." I know that that does not completely meet the Senator's point of view. Perhaps he will say that it is with regard to particular persons, and not classes, that he wants publicity. I am afraid that we could not agree to that. If we were to agree to it it would lead to considerable difficulty from the administrative point of view. It might also do unnecessary harm perhaps to individuals. We could not agree to have the orders with relation to particular persons published, but if the House would permit it and the Senator is satisfied, I am prepared to accept the amendment with the deletion of the words "or in respect of particular aliens." We are meeting the Senator on his point with regard to class but not with regard to individuals. I grant there are reasons why orders of this sort should not be kept secret and should be published. I indicated some of these on the last day. I referred to publicity by way of Parliamentary Question or of returns. It was suggested, and probably rightly, that if there is to be publicity there will be less harm by having the publicity in a publication such as the Iris Oifigiúil than by way of Parliamentary Question or Parliamentary Return.
Is Senator Johnson accepting the President's proposal?
It is better than nothing.
We can have it put in order.
Government amendment No. 4:—
Section 8, sub-section (1). To delete in lines 20-21 the words "who is for the time being" and to substitute therefor the words "of or."
I second.
The object of the amendment is to get rid of that curious phrase, "time being" to which attention was directed by Senator Milroy. We propose to delete the phrase and to insert the words "of or".
I want to say a few words on the general character of this legislation. It is desirable to make a protest or to utter a warning, so that the House or, at least, the Ministry will realise the tendency of legislation of this kind. The plan of the Constitution is that the Legislature makes laws, and an Executive has to administer those laws. This is one of numerous Bills of the kind that have been passed at different times. Hitherto power has been given to the Minister in fact to legislate, because when a Bill hands to a Minister powers to issue orders, and to prescribe punishments for the breach of those orders, I consider that is legislation. I recognise quite well that sometimes, and for several classes of laws, this procedure is inevitable, but it should be minimised and restricted as much as possible. The original Aliens Act, of which this is pretty well a copy was passed under war conditions in 1914, and made it possible for a Minister to make orders which had the effect of statutes. After the war that particular piece of legislation was carried on, but had to be re-enacted year by year. The position of this Bill is that it is a permanent piece of legislation, which has not to be re-enacted year by year. Nevertheless, it gives very great powers to the Minister, subject, of course, to the Aliens Orders, which the Minister may issue under the Act, being laid upon the Table of the House. That procedure enables the House at some time within 21 sitting days after the order has been made to have it annulled, but, in practice, we know it means that the Minister is as effective as the Legislature with this particular group of questions.
But the order itself, as I pointed out in the last amendment, may contain powers which are in effect legislative powers to make orders which are not required to be laid upon the Table, so that on the assumption that the aliens order that is to be laid upon the Table will contain some such provision as this, "the Minister may by order impose on any alien or class of alien such restrictions either in addition to or in substitution of" other restrictions imposed by the order. Certain aliens orders will be made by the Minister and laid upon the Table, but such an order, if the Minister follows precedent, will give him powers either in substitution of or in addition to the orders laid upon the Table. That strikes me as containing possibilities of very great abuse, and it removes from the control of the Legislature powers which it should retain in its hands. The objections I have made to this Bill are almost wholly of that character, that it gives to the Minister for the time being powers which ought, on all normal occasions, apart from emergency and war, be retained strictly by the Legislature. This piece of legislation is in keeping with that body of statutes which is coming into vogue, which one might say transfers or devolves upon the Minister powers which the Legislature itself should retain. I am in agreement that certain procedure of administrative legislation—if I may use the term—might be desirable in certain circumstances, but, I think, if the Legislature is going to move in that direction it should do it deliberately. It should not give a little in this Bill, a little in another Bill, and a little more in a third Bill, so that we shall gradually be renouncing our responsibilities under the Constitution as the legislative authority. This Bill goes a long way in that direction, and it is on these grounds I have felt it necessary at least to utter a warning if not a protest.
I have already indicated a certain amount of sympathy with the point of view expressed by Senator Johnson. However, I think he altogether exaggerated the tendency in this Bill, although it is a type of, measure in which inevitably a large amount of power must be given to the Executive. I do not know whether it will be possible to evolve some form of machinery which will enable a certain amount of work to be gradually transferred from the Executive and to be performed more directly by the Parliament, or by some other machinery besides the Executive set up by the Parliament. I do not see how it can be done. I can assure the Senator that in this Bill every effort was made to leave to Parliament the powers it possessed. Perhaps I misunderstood the Senator, but I thought he suggested that the Minister could impose punishment. I do not think that power is in the Bill. It creates offences by law, and any punishment for such offences has to be inflicted by a court. Here we are simply making certain things offences by legislation, and these offences have to be tried by a court. It is true that the Executive has to defend the general interests. For example, having got permission from the Legislature to deport, the order under which special deportation orders come to be made has to be sanctioned in the long run by the Legislature, if not directly, indirectly; in the sense that members of the two Houses will have an opportunity of seeing the order, and if they think there is anything inimical in it to the public interest they can call attention to it, If the Legislature decides that such order should not have been made, it can be annulled. I do not think we could have made this Bill effective in any other way.
Parliament is given every opportunity to see all orders that are made, and, if it is not pleased with them, to annul them. The only case in which there is anything like what I might call private action by the Executive is in the case of a deportation order, and I explained why we think there should not be publicity in a particular case. In such cases we have to depend upon the Executive having a proper view of its responsibilities, and upon Parliament taking care to hold—as it has the power of doing—the Executive accountable for all its actions. The more powers given to an Executive like this the more necessary it is for Parliament to be watchful, and to see that the Executive which it appoints and controls works in the public interest. Even though I have the same general feeling as Senator Johnson, I have no hesitation in recommending the Bill for final passage.
I should explain that if I said that the Minister took powers to punish, I made a mistake. All I intended was that in the order it was intended to supersede the Minister by taking powers to prescribe punishment.
That is not in the Bill.
It is in the 1925 Order.
The Senator said that the Minister was taking power to make other orders which would not come before Parliament.
