I do not like the language of exaggeration and I have an equal dislike for over-emphasis in statement, but I do not hesitate to say that no question involving so important a principle as this could, in my opinion, come before this House. The principle involved is the one of continuance of Parliamentary democratic government and nothing less. It is a Constitutional principle, to which if we do not pay a sufficient regard, we may find we have lost our hard-won democratic freedom.
In brief, an Act carefully considered and passed by this Oireachtas, has been hamstrung, or, I might say, poleaxed or inhumanly slaughtered by what amounts to the ukase of an executive Minister. The original Bill was introduced into the Seanad at the end of 1933, having, as he told us yesterday, been drafted by my friend Senator Kingsmill Moore. It was introduced in this House by two men who should be held in high honour. Senator John T. O'Farrell and Senator Samuel Lombard Brown, who not only graced this Assembly but would grace any Parliament of which they were members. After an informative Second Reading debate, the Bill was referred to a Select Committee. Unofficially, I attended that Committee because of the intrinsic interest of the Bill, and the competent manner in which it was being dealt with. I well recollect the circumstances. The keystone of the whole question was the method of slaughtering animals for food. The consensus of expert opinion — the overwhelming consensus of expert opinion —was that what is called the humane killer was the best method.
Now, the committee spent more than 15 hours in taking the evidence of witnesses, and in deliberating in private on that evidence. Among the witnesses were: the Principal of the Royal Veterinary College of Ireland, the Chief Veterinary Inspector of the Dublin Corporation, the Deputy Commissioner of the Gárda Síochána, the head of the Veterinary Department of the Corporation of Belfast, the Professor of Zoology in Trinity College, Dublin; the Manager of Irish Co-operative Meat, Limited; the Chief Rabbi, the President of the Dublin Victuallers' Association and a number of others, including farmers with experience of the slaughter of animals. The Bill was passed by this House and sent to the Dáil. It was there adopted as a Government measure, preserving all its essential sections, and, as such, it was sent back to the Seanad and became law on the 12th December, 1935, as the "Slaughter of Animals Act". The keystone of the Act — which was the keystone of the discussion in our Select Committee — is Section 51, which reads:
"Subject to the provisions of this section, no person shall in any slaughterhouse slaughter, or render unconscious for the purpose of slaughter, any animal of any particular kind by any means or in any manner otherwise than by means of an instrument which is an approved instrument in relation to animals of that particular kind and is in good working order and is used in the approved manner."
There are two other sub-sections ——"savings", as they are called in law — for people of the Jewish and Mohammedan faiths, whose religion demands the killing of animals for food in a certain manner. This sub-section has been poleaxed by executive instrument without reference to this Oireachtas, which passed the Act. It has been poleaxed in such a way — I think designedly—as to prevent either House of the Oireachtas from taking cognisance of it or doing anything effective about it. I propose to show how, in my opinion, this came about; but first I want to say a few words about delegated legislation, of which this is a typical—or perhaps I should say an untypical — specimen. I hope it is untypical of what will happen in the future.
It is necessary to say, something about this very difficult topic because I was surprised to notice, from an interruption last night, that the meaning of delegated legislation is not thoroughly understood in certain quarters in this House. The increasing complexity of modern life renders a certain amount of delegated legislation inevitable. It is an evil, but it is a necessary evil. What happens generally is this: Parliament draws the rough outlines of a Bill. That Bill becomes an Act, and power is given in that Act to an executive Minister, by statutory rule or order, to fill in the outlines which have been left unfilled by the Legislature. Perhaps I may be permitted to read, in further explanation and criticism of this matter, what I myself wrote on the subject shortly before the war:—
"The growth of this delegated legislation in the post-war period"— that is, since the last war
—"representing as it does an enlargement of the bureaucracy at the expense of Parliament is a phenomenon which has excited apprehension in Great Britain and other States of the British Commonwealth among those who have a proper regard for democratic institutions. The abuses inseparable from it have been trenchantly exposed by the present Lord Chief Justice of England, Lord Hewart,"—
now dead
—"in his book The New Despotism, published in 1929, and the matter has been the subject of an inquiry by a Select Committee of the House of Commons which reported in 1932.”
Sir Lyndon Macassey, a distinguished Irishman, and the doyen of the Parliamentary Bar in England, wrote as follows about what actually happens in the Parliament of Westminster and it is, too often, what happens here also:
"Government Bills are forced through Parliament under the pressure of the Government Whips. There is little time for discussion of their provisions either in the House or in Committee. Legislation is passed in the most general terms and left to some Government Department to apply as it thinks fit under machinery or rules to be made by it. The Cabinet is, therefore, in a position, through its member at the head of a Government Department, to embark on a particular policy which has never, in any detail, been discussed in Parliament or communicated to the public. If the action of the Department is challenged in the House, the Government can say, as has been done, that the action of the Department is fully within the power conferred on it by the Legislature."
The safeguards provided in connection with this delegated legislation are, in general, of two kinds. One — the more rare of the two — consists of a clause in the parent Act that the Statutory Rules and Orders made thereunder shall require positive approval by both Houses of the Oireachtas. More commonly, unfortunately, it is provided that, unless a resolution of annulment be passed by either House, the Statutory Rule or Order becomes effective. In the particular case we are discussing, something quite unprecedented in my experience has come about. This is not a case of Parliament drawing the outlines of a picture and allowing a Minister of State to fill in the completed picture. Here we have a picture completely drawn—every line of it—by the Oireachtas, and the Minister, with one stroke of his brush, obliterates the central figure in the picture. That, as I have said, is unprecedented in my experience.
Let us examine now, the legal aspect of this matter so as to see how it has come about. The fons et origo mali is the Emergency Powers Act, 1939. That was passed on the 3rd December, 1939 —two days after the German Reich had begun to make war on Poland and on the very day the United Kingdom declared war on Germany. The effective section is Section 2. Sub-section (1) of that section states:—
"The Government may, whenever and so often as they think fit, make by Order, in this Act referred to as an Emergency Order, such provisions as are in the opinion of the Government necessary or expedient for securing the public safety"
Mark these points,
"or the preservation of the State or the maintenance of public order or for the provision and control of supplies and services essential to the life of the community."
Then sub-section (2) says:—
"Without prejudice to the generality of the foregoing sub-section of this section, the Government may do by an Emergency Order all or any of the following things, that is to say..."
You get a whole series of items, covering various aspects of the situation. The last one of all is perhaps the most important and is the one that is most in point here.
"(p) Suspend the operation of or amend or apply with or without modification any enactment other than this Act for the time being in force or any instrument made under any such enactment."
Then you have sub-section (3) following that. This is also in point in the debate in view of what has happened: —
"Whenever the Government makes an Emergency Order the Government may in lieu of making provision for or doing any particular thing in or by such Emergency Order authorise or empower by such Emergency Order a Minister or any other person specified or indicated in such an Emergency Order to make the said provision or to do the said thing, and for that purpose subject to such conditions and consents, if any, as may be specified in such an Emergency Order to make, grant or issue such instruments and give such directions as shall appear to such Minister or person to be necessary or proper to the said purpose."
The bones of that is that the Government may amend or repeal any particular Act of Parliament. More than that: the Government may, by Emergency Order, delegate these powers to a particular Minister or other person. There are, of course, safeguards and the safeguard comes in Section 9: —
"Every Emergency Order shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling such Order is passed by either such House within the next subsequent 21 days on which such House has sat after such Order is laid before it, such Order shall be annulled accordingly, but without prejudice to the validity of anything previously done under such Order."
That is what we call common form.
The powers given in this Emergency Powers Act, 1939, were necessarily and admittedly very wide powers indeed, very drastic powers to give to an Executive, and of course could only be justified by the existence of a state of war, even though Ireland was not implicated in that war. Naturally, when the Bill came before the Dáil the matter of safeguards was raised. The Taoiseach said on the 2nd September, 1939, (Dáil debates, volume 77, col. 6):
"Another question which was raised was that under this general power of suspension of certain enactments the Government might, for example, suspend the old age pensions or something of that sort. Of course, I need hardly say that there is no intention on the part of the Government to use its powers in such an arbitrary way."
When introducing the Second Stage of the Bill the Minister for Industry and Commerce, Mr. Lemass, said on the same day (in the same volume, col. 26), (paragraph (p) is the paragraph enabling Acts of the Oireachtas to be abrogated or modified):
"The object of paragraph (p) is to suspend the operation of, or amend or apply with or without qualification any enactment for the time being in force or any instrument made under any such enactment. There are many minor enactments, the operation of which cannot be proceeded with in case of war. Very many of them would come under the Department of Industry and Commerce and it is necessary therefore to have such powers to suspend the operation of such enactments or to amend such an enactment for the time being. Some fear has been expressed that that particular power might be abused by the Government for the purpose of introducing special or extra powers with regard to social legislation or for making changes in the law which have no relation to the state of emergency that exists. Assurances have been given by the Taoiseach that that is not intended."
Now, Sir, I would like to say that I have no doubt whatever that when the assurances were given they were sincerely intended by the Taoiseach and by the Minister for Industry and Commerce. This kind of assurance is so often given in other countries when the Government is being conceded arbitrary powers. The Government may be sincere, but appetite grows by what it feeds on, and what it feeds on is power. It has happened elsewhere and there is no saving grace in Ireland to prevent its happening here. It is, in fact, happening here.
The Taoiseach said again on the same day (in the same volume, column 171):
"Very largely you will have to trust the Government with these powers, and there is no use in trying by a little amendment here and there to restrict these powers. In the powers that are given loopholes can easily be found by any Government that is disposed to act improperly."
I suggest, Sir, that in this case the Government or Minister of Government, who is not here to-day and who should be here, has been acting improperly and has found his appropriate loophole.
Now I come to the Orders with which we are concerned. The first of them is the Statutory Rules and Orders, 1942, No. 556, entitled the Emergency Powers No. 212 Order, 1942. It is a very short one and I propose to read it in full: —
"Emergency Powers (No. 212) Order, 1942.
The Government in exercising the powers conferred on them by the Emergency Powers Act, 1939, (No. 28 of 1939) and of every and any other power them in this behalf enabling, hereby order as follows: (1) this Order will be cited as the Emergency Powers (No. 212) Order, 1942; (2) the Minister for Local Government and Public Health may from time to time, by Order, suspend the operation of sub-section (1) of Section 15 of the Slaughter of Animals Act, 1935 (No. 45 of 1935) either as regards animals generally or as regards animals of a particular kind. Given under the Seal of the Government this 19th day of August, 1942.
(Signed) Eamon de Valéra,
Taoiseach."
That is what I call an Order in posse. It does not direct anything to be done. It does not come within the letter (p) of sub-section (3) of Section 2 of the parent Act.
Sub-section (3) of the Act enables the Minister to do something —"the Minister for Local Government and Public Health may" do so and so. In other words, the Minister may wipe out the corner-stone of this carefully drafted and universally approved Slaughter of Animals Act. Under Section 9 of the Act that Order had of course to be tabled. It was laid on the Table of the Dáil on the 14th October, 1942, on the Table of the Seanad on 23rd September, 1942. Within 21 sitting days of that event it would have been open to either House to pass a resolution annulling the Order. That is the safeguard. If such a motion had been put down and if it had been passed, the Order would have been annulled. Why was that not done? Well, Sir, as my friend said yesterday, this is a permissive thing as far as the public was concerned. Nothing whatever happened as a result of it. There was no particular reason to suppose that anything would happen as a result, and there was every reason to suppose that nothing would happen. In other words, that if a second Statutory Order were made by the Minister for Local Government and Public Health doing the thing which he was enabled to do by the Order of 1942, it would come before us. As my friend Senator Kingsmill Moore said, there is no good shouting before you are hurt. Apart from that, there is what I have termed elsewhere the incuriosity of legislators. Papers are laid on the Table of the House and unless one's attention is specially drawn to them one does nothing about the matter, and often one is not aware that anything important has occurred.
I do not go into the legal point as to whether the Order I have read out is a legally valid Order. I think it is a matter for dispute from the lawyer's point of view whether it is in fact valid, because it does not actually effect anything. It merely enables an Executive Minister to effect something. The 21 days within which the Order could be annulled in the Dáil ran out on the 11th March, 1943, and in the Seanad on the 11th February. 1943. The Minister for Local Government and Public Health, in accordance with the usual procedure, was officially informed of that fact by the Librarian of Leinster House on the subsequent day in each case, on the 12th February and on the 12th March respectively. After that, of course, the Order could no longer be annulled.
Some months after the expiry, namely, on the 19th day of October, some eight months later, the Minister for Local Government makes his Order. You may ask why was it not made earlier, why was it not made immediately after the Order made in August, 1942? I suggest to you the reason may well be this, that if the second Order, Mr. MacEntee's Order had been made while the 21-day period was running in either House, that is before the 11th March or 11th February, 1943, respectively, it would not have been too late for some member in either House to put down a motion of annulment. Then, again, nothing was done until October. It is possible that, with a general election in the offing, the campaign that some of us would certainly have undertaken in the country, on humanitarian grounds, if we knew that this wicked step was to be taken, would have done a good deal of political harm to the Government; and so they held their hand. Then, after the election, it is this Order that is proposed. It is quite short and I am going to read it:
"STATUTORY RULES AND ORDERS.
1943. No. 342.
The Minister for Local Government and Public Health, in exercise of the powers conferred on him by the Emergency Powers (No. 212) Order, 1942, hereby orders as follows, that is to say: —
1. The operation of sub-section (1) of Section 15 of the Slaughter of Animals Act, 1935 (No. 45 of 1935), shall be suspended as regards animals generally.
2. This Order may be cited as the Emergency Powers (Slaughter of Animals) Order, 1943.
GIVEN under the Official Seal of the Minister for Local Government and Public Health this nineteenth day of October, One Thousand Nine Hundred and Forty-three.
(Signed) Seán MacEntee,
Minister for Local Government and Public Health."
That is the Order in esse, the other was the Order in posse. That second Order was not tabled here for statutory presentation in the Seanad. As I understand, it even was sent to the Clerk of the House for tabling as a non-statutory presentation. The view was evidently taken by the Minister for Local Government and Public Health that this Order is not caught by the provisions of Section 9 of the Act of 1939, that is to say, it is not an emergency Order within the meaning of Section 9. So this House is not officially cognisant of it and cannot annul it; and the Dáil, of course, cannot annul it. Well, Sir, objection was taken here yesterday to the use of the word “chicanery” in that connection. All I have to say is that, if one is not allowed to use the accepted vocabulary of polemics in its proper connotation, the sooner we shut up the better, and you may abolish the Seanad a second time. Actually, you might abolish it at the same time as you abolish proportional representation. There is no good in making two bites at a pineapple. That is the loophole they found — that they did not table the Order for statutory presentation: on the ground, I presume, that it is not an emergency Order within the meaning of the statute but is perhaps an “instrument” or “direction” within the meaning of sub-section (3) which I read out to you a while ago Personally, I think that is legally quite untenable. It is called on its face an Emergency Powers Order, and under Section 9 of the Act it should be laid before each House of the Oireachtas. Certainly, that is a matter in connection with which I cannot imagine the Government having right on its side, from the legal point of view, at any rate. Of course, the object in not presenting the matter to us was to withhold from us the power that is given under Section 15, and to prevent anything being done about this matter of the humane killer until it was too late. So much for the legal end of the question.
As to the merits, I must confess that I am not properly seized of this matter, except from what I heard from Senator Kingsmill Moore's speech last night, but it would appear to me that there is not a real lack of ammunition for these humane killers, and that the only shortage of ammunition is in connection with one form of humane killer which is manufactured in the City of Hamburg, in Germany. Now, the humane killer has been in use for a number of years in this country, and the adoption of its use marked a definite advance in our humanitarian feeling towards our brothers, the animals. A country's civilisation may be judged — and often rightly judged — by its humanitarian conduct, and I may say, as one who has travelled through Europe, that one often notices that the less civilised a country is, the less kindly is their treatment of animals, and that the more civilised a country is, the more kindly is its treatment of animals. I am quite satisfied, from my general experience, that the standard of kindly treatment of animals in this country is quite reasonably high in comparison with the treatment of animals in other countries in Europe.
Now, there are certain questions that I should like to ask the Minister. I think it is due to the House that answers should be given in this connection, because a great deal of apprehension, and justifiable apprehension, has been caused by this issue that has been raised by my friend Senator Kingsmill Moore. First of all, what is the legal interpretation by the Government's officers, or the Attorney-General, on this question as to whether the Statutory Rule and Order, of 1943, is caught by Section 9 of the Act of 1939; secondly, if it is not deemed to be so caught, why not? and, also, whether, before the Order was made, any inquiries were instituted with a view to finding out whether wholesale or retail dealers in such ammunition had sufficient stocks in hand? In other words, were steps taken to ascertain the justifiability or otherwise of the Order? I suggest that the fuller the disclosure that can be made by the Minister in regard to this matter, the better it will be so far as the safeguarding of the institutions of the Oireachtas is concerned. However, it is the principle, rather than the matter of kindliness to animals, that really matters here.
It is the principle, rather than the question of the instruments to be used, that is transcendent in connection with this matter, and I think that we should all bear this in mind. Governments have a habit of acquiring an increased appetite for power, and there is no doubt that the power that has been given to this Government—an almost unbridled power for nearly 12 years — has tended to make it despotic and overwhelming, and to tempt it to make Orders, such as this, without any reference to the Oireachtas. That has happened in other countries, and from similar causes; and I am afraid that, given the same temptation, our Government might be drawn into pursuing the disastrous courses that have been pursued by despotic governments in other countries. Now, in other countries, where this evil of delegated legislation has transgressed beyond due bounds, it has not seldom happened that a vigorous opposition, or a vigorous back bench, has been able to check such a tendency, and I appeal to members of the Government Party in this House to ponder on this question: whether it is more important that a particular Minister should be protected, where he has done something objectionable from a Parliamentary point of view, or whether our Parliamentary traditions should be maintained in full vigour?
I beg every member of this House to ponder over that question, because it is a question which seriously affects every member of this House, both from the point of view of the principle involved and of its particular application. Every member of this House should ask himself whether, having due respect for the high dignity of the vocation of politics and for the traditions of this House, he will agree that this matter must be, and shall be, fully investigated.