I cannot do better than that. I was going to suggest that he would say that he had considered all forms of bridles, from those used by the ancient Egyptians in Europe and those used by the ancient Aztecs in America, right up to the latest suggestions on the files of the Patent Office, that he had measured them, that he had tested them, that he had compared them, that he had given serious consideration as to whether rope or leather were the better; but, at the end of it all, after the closest possible analysis, he had come to the conclusion that no conceivable bridle would be suitable for him. That, of course, is the reply of the Civil Service who are asked to suggest some means by which they may have to be a little more careful about the framing of these Orders.
I have in this House before dissociated myself from the thoughtless and erroneous criticism which is usually passed on the Civil Service. But, at the same time, I am not willing to subscribe to the view that "they are the men and that wisdom will die with them." They are human, and because they are human, they are apt to make mistakes. They are human, and because of that humanity, they do not very much care for these mistakes to be pointed out and corrected. They are human, and to them the easiest way of doing a thing is the simplest and most acceptable. They are human, and they are not altogether dead to the pleasurable thrill which comes from the sense of what is an enormous unlimited power. Therefore, I say that the mere fact that the Civil Service did not suggest a suitable method of controlling the unlimited power of amending or suspending legislation is no reason for assuming that a solution of the problem cannot be found. The object of this Bill is to see if the Seanad, by its united brains and its united experience, cannot solve that problem which the Civil Service profess to have baffled them.
In this House, however, there are men who can combine the experience of very many walks of life, men of very different education and of very different outlook; and it does seem to me that, if this problem is to be solved, it is more likely that the solution can be found by pooling our brains for once instead of pitting them against each other and seeing if, after having given this Bill a Second Reading, we cannot on the Committee Stage produce a Bill which will attain the main object, accepted by the Taoiseach, without involving him in any of the difficulties which he suggested might arise.
Before going on to the further objections which were raised, I think I should deal with a matter to which I have already referred, which is not so much an objection as a ground of misunderstanding. The point has been made that Orders such as those with which this Bill deals—what the Taoiseach calls the parent Order—are, in fact, tabled before the House. This Bill does not deal with Emergency Powers Orders in general. It was quite apparent at the First Reading that some people were under that impression. This Bill deals only with Orders made by what has been called aptly the cow and calf method. The method is that you have an original Order which is known as the cow Order, made by the Government. That Order, as you would expect from a quite animal like a cow, does nothing at the time. It merely gives the cow liberty to calve. The Order you have to watch is the subsequent Order, made by the cow when it calves. In other words, the original or parent Order gives to a Minister—or anybody else, and it might be to me, since the Act goes as far as that—the power to make an Order on certain lines. Now, it has been suggested that objection could be taken and debate promoted when the cow comes into existence—but there is no statutory period of gestation for this cow. You do not know when it is going to calve and you do not know what the calf will be like when it comes.
Therefore I say it is a futile objection to suggest that, when a power is given to a Minister to do something, the whole matter can be suitably debated on the Order giving the power. That power may never be exercised and, therefore, it would be ridiculous to waste the time of the House discussing whether it is right or not. When it is exercised, conditions may have so changed that it is a very proper and beneficial exercise to which every member of the House would say "Hear, hear". The only practical time for examining the calf is when the calf is born. The object of this Bill is merely, when the second Order is made, when the circumstances are known and when the terms of the Order and the need for it are known, that it may be examined in this House; and then, if it be excessive, if it be careless, if it be oppressive or erroneous, this House can control what is done by that Order. Remember that there is nothing at the present moment to prevent power being given to the Minister for Justice, at such time in the future as he desires, by an Order made in his study, to abolish the criminal courts of the land and to substitute courts-martial for every man, woman and child in Eire. That could be done and, if it were done by this method, the necessity or the desirability of such an Order could not be questioned in either House. So much for the argument that, because the parent Order has to be tabled, there is no necessity for a provision for the tabling of the delegated order when it is made.
In the next objection, it was suggested that this Bill, if it be passed in its present form by the House, would in some way interfere with—and here I quote the Taoiseach, or, it may be, Senator Quirke—"the necessary power to do things quickly where swift action is necessary". Let me disabuse the House of that: there is not a word about that in the Bill. There is not a word in this Bill which would prevent either the Government, or the person to whom power has been delegated by the Government, from making the Order 30 seconds after he thinks it necessary. This Bill does not purport to interfere with any power of making Orders given by an Emergency Powers Act in existence.
The next argument was—and this was certainly Senator Quirke—that this Bill would make the work of the Civil Service impossible, as they would have to table all Orders. Senator Quirke said there were some 40,000 Orders in respect of fuel. Apparently that is so, as I notice that the sheaf of paper for notes which I have before me has on its back a large number of unused fuel Order forms. Again, it is hardly worth while stressing the answer to that. The Bill does not do that: it does not make necessary the automatic tabling of a single Order. So far from all the 40,000 Orders mentioned by Senator Quirke and the various Government regulations having to be brought before the House by this Bill, not one single delegated Order will be tabled, unless seven members of either this House or the Dáil have put their names in writing to a requisition, giving the name and number of the particular Order which they think should be brought before the House for discussion, and requiring that that Order shall be tabled. You have there two safeguards. First of all, you have a safeguards, in that no Senator is likely to expose himself to ridicule by asking that there be brought before the House an Order of purely administrative, local or individual importance; and seven Senators are a great deal more than seven times less likely so to do. It is only when a Minister, or another person who has made such an Order, receives a written requisition naming the particular Order which, in the view of those who signed the requisition, should be tabled before the House, that he need put it before you.
The next point made was that certain Orders might be of a confidential nature. The instance was given of an Order putting a person into an internment camp. The actual Orders in those cases are usually not made under a delegated emergency power. But can anybody conceive Orders of that nature—which are Executive, Ministerial Orders—being required to be tabled? You must distinguish between those which are known and those which are not known. If they are not known, they cannot be requisitioned.
The only kind of Order which in practice you could require for tabling would be an Order which was actually in print and published because if you did not know about it you could not require it. Someone may suggest that there could be a requisition as to a confidential order. I do not think that objection is seriously meant. Again I think you will agree that seven members would not be prepared to do a thing like that. In so far as this is concerned, I am prepared if it is in my power to do so—unless the House votes against me—to accept on the Committee Stage an amendment in this form: if the Minister or a Minister of State certifies under his hand that the publication and tabling of the Order would endanger the security of the State or public safety, that such a certificate would be an answer to the requisition by the seven Senators. In that I am adopting the procedure we use in the law courts, because in the law courts one litigant can force another to discover all documents which are relevant to the case, but if certain of these documents happen to be documents of State then an affidavit made by a Minister that the production of those documents is against the interests of the State protects the documents from disclosure. An amendment along those lines, worked out in Committee, is one which I, personally, would be perfectly willing to accept.
The last objection was that Orders affecting private firms might be disclosed. Again, that entirely misconceives the scope and nature of the Bill but, again, I would be prepared to accept an amendment that a certificate by a Minister saying that the production of the Order would involve disclosure of commercial secrets, should be a sufficient answer. I do not think these amendments are necessary because I think the suggestion is perfectly fantastic that this Bill would have any effect upon such purely administrative Orders, but if there is any fear and if Senators think that would in any way be the position, I am willing to accept such an amendment.
I do not think that this House has appreciated the moderate nature of this Bill. The Taoiseach has referred to the principle whereby legislative Orders are to be controlled. There are a number of ways of doing this. The way suggested in this Bill is milder than any way that has yet been used. The ordinary way was that a provisional Order had to be passed as a statute through the Houses. Then there was the method by which Orders made by the Executive or under Executive power should be laid before the House and should not come into force until resolutions had been passed by the House or tabled by a certain time. These methods were clearly inapplicable in the cases of emergencies and, therefore, the Government introduces in the Emergency Powers Act a provision which applies to Emergency Powers Orders made by the Government. Section 9 of the Emergency Powers Act, 1939, says:
"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 a section introduced by the Government. It provides that the Government can make an Order and that nothing ever done under that Order shall be subsequently impeached. But the Order may be discussed and if necessary annulled. Surely if the Government was willing, and thought it necessary, that the Houses of the Oireachtas should be given a controlling power such as that over Orders made by the Government, is it not very much more necessary that the House should have some similar power over Orders not made by the Government at all but made by some underling to whom that power has been delegated and who will not have the same responsibility and care as the Government that have made such an Order? The provision I have drafted follows word for word the provision in that section. It is provision for having the Order tabled, provision for discussing and annulling it.
In respect of these Orders, which should be much more jealously guarded than Orders made by the Government itself, I have gone further and suggested that there should be no automatic tabling of the Orders at all, and that they should be merely tabled if seven responsible members of the Legislature think it is necessary. Could a Bill be more moderately drafted or less oppressive than that? It does not provide that every Order shall come before the House. It gives full scope for having an Order made as soon as anyone thinks fit. It allows that Order to remain in force, and whoever has made that Order cannot be impeached for anything done under it. It merely says that if the Order turns out to be bad Senators and Deputies will be able to say: "Put it before the House, so that we will see if it may be annulled." And, of course, even if an Order were annulled the Minister would make another Order next day embodying the criticisms made and improving the Order which had proved to be defective.
If I were to say that this was an opportunity for this Seanad to subserve at least one of the purposes for which it was created, some people might take umbrage at the form of the expression. Let me put it in a very simple way. It has been suggested that it is impossible to combine this principle which everybody accepts with practical work. I do not accept in this or indeed in anything that word "impossible". I believe it is possible. I believe that the Bill I have drafted does do it, and I am quite sure that it can be improved and amended in Committee. Let us approach this in a spirit of co-operation. Let us first of all give it a Second Reading and let us then unite our brains and our experience. If you do, I am perfectly certain that a Bill will emerge which when it has passed this House will be adopted by the Taoiseach as a Government Bill and which will combine the principle of representative government with the needs of the emergency.
