I find replying on this Bill a very difficult task. I have no difficulty in replying to the occasional arguments against it which were addressed to the substance of the Bill. I do find myself in an almost insuperable difficulty in replying to at least four-fifths of the speeches against the Bill, because these four-fifths were speeches against a purely imaginary Bill with imaginary clauses which were not before the House and were not in the brain of anybody except those people who, failing to find arguments against the actual Bill, set out to imagine a Bill which they could oppose. We have had a long litany of the evils of things which the Bill does not do does not purport to do, and could not possibly do. Sometimes the objectors credited the Bill with powers which I would regard as almost miraculous. Senator Quirke referred to the Bill as a bridle with which to hamstring the Government. I do not know anything much about horses, and I understand that Senator Quirke knows a great deal, but it must be a very remarkable bridle which is capable of hamstringing a horse. Even An Taoiseach used the highly coloured word "shackle"; and those who did not seek refuge in metaphor whether for expressing, or concealing their thoughts used phrases such as "take power away from the Government," and "interfere with the necessary freedom of the Government." Now what am I to say?
This Bill has been circulated and everybody has at least had an opportunity of reading it, although I am not suggesting that everybody has read it. I endeavoured to explain it on the First Reading, and I endeavoured again on the Second Reading to explain it, but apparently neither the Bill itself nor my explanation of what it can do has been sufficient. I am afraid I have to resort to the only expedient left to me in a nightmare situation, and like the bellman in "The Hunting of the Snark," I suggest that "if I say it three times it is true."
I wish to say this for the third time —that this Bill will not prevent the making of any single Order which the Government or a Minister can make at the present moment, that it will not delay the making of a single Order which the Government or a Minister can make at the present moment, and that it will not invalidate anything that has been done under any Order which the Government or a Minister can make at the present moment. The sum total of the effect of this Bill is that if a Minister acting under a delegated power, makes an Order carelessly or hastily or under a wrong impression there would be provided a constitutional method—I emphasise that phrase—whereby the Order could be subjected to helpful criticism by either House.
Senators have attempted to make much the same argument as that to which I have already referred by a liberal use of words such as "emergency" and "neutrality". Those words with their temporary hypnotic influence have done nothing more than lull the intellect of the House asleep. Everybody knows, and everybody in this House, I imagine, accepts, that an Executive must often act on its own responsibility. I go further than that and say that an Executive must often act illegally. There are occasions when those who are governing must act on their own judgment and responsibility and say: "We must do such and such a thing even though, for the time being, it is admittedly illegal." That has always been so under every system of government of which I know. Whether you have regard to the old Roman method of appointing dictators or the other method by which the laws of the land are sometimes temporarily suspended, that is a necessary provision whatever kind of Government you have.
The way in which that difficulty was met in the past was this: If an Executive Government thought a thing had to be done, they did it and then came to both Houses of their Legislature and said: "We have done a thing which was illegal; we did it because it was necessary; we take responsibility for it and are prepared to show you that it was wise; now, we ask you to pass a Bill of Indemnity." So far as I know, in such circumstances, an Act of Indemnity was always passed. When the present emergency arose, the Government introduced an Emergency Powers Bill which substituted for that an infinitely better provision. They provided, as it were beforehand, an indemnity for anything they did under an Order which they thought it necessary to make so as to deal with the circumstances with which they were confronted. They took these powers to make Orders at once.
They took these powers of suspending the law so as to avoid actually breaking the law. I have nothing but admiration for the clause which you will find in the Emergency Powers Act which provided that the Government might, by Order, do these things, and that any act which was done under such Orders should not be impeachable. But the Government themselves saw the difficulty and, in regard to Orders made with the full responsibility of the Government, considered, presumably, by every member of the Government and signed on behalf of the Government, it was provided that they were to be liable to be brought before either House and annulled if either House disapproved of them. That is not my provision. The provision you will find in the Bill before you does not emanate from my brain. It is the provision which the Government themselves applied to every Emergency Powers Order they made, and all the arguments put forward to-day as to the undesirability of discussion of the reasons for such Orders, as to the possibility of delay and such matters would apply with double force to the original Emergency Powers Act made by the Government which they themselves wittingly and, I think, rightly subjected to scrutiny by both Houses and to possible annulment.
Why, then, is it necessary to have this Bill? Certain Senators said that I was attempting to question the wisdom of those who passed the Emergency Powers Act. I am doing nothing of the sort. I am seeking to give effect to it, because anybody who reads that Act will see that the sub-section giving power to delegate matters to Ministers, who do not have to table their Orders, was perfectly clearly meant for purely executive and administrative matters. It was meant for the kind of things referred to by Senator Quirke—petrol licences, fuel licences. Orders dealing with wages in respect of one firm and so on.
All matters like that were to be delegated to Ministers and, because they were purely minor administrative and executive matters, no provision was made for tabling them. That provision has, in fact, been used in a way which was never contemplated by the people who passed the Emergency Powers Act. If Senators turn to the debate on that measure, they will find that what I say is correct. It is being used because it is convenient to delegate larger powers to Ministers, powers to make Orders suspending or amending the statutes of the land. I am not seeking in any way to question the wisdom of those who passed the Emergency Powers Act. I am seeking, by this Bill, to give effect to their intention and to prevent a clause, meant merely to deal with minor matters of business, from being used in a way which was not intended.
The Bill which is before you seeks to restore the position which was meant to be created by the Emergency Powers Act. It seeks to avoid what has admittedly, I think, been a perversion of the original intention. But it did appear, in the course of the First Reading debate, that there were certain people who, either really or ostensibly, had certain apprehensions as to the way in which the Bill before you might be abused. It is perfectly true that the word "instrument" which you will find in the Bill before you, is given a very wide meaning by the definition section in the Emergency Powers Act and that, technically, it would include licences and matters of that kind. I need hardly say that those were not in my mind and could not, I think, be in the mind of the hypothetical seven Senators who have to sign the request.
In case anybody should feel that it might be abused I at once offered to make an amendment whereby any Order which had not been published, any Order which was thought to be of a confidential nature, or any Order which might reveal anything to do with the private matters of a firm, could be protected from the provisions for tabling and discussion on a certificate of a Minister that it either would be against the safety of the State to discuss it or that it would reveal the private affairs of an individual firm. I do not think these restrictions are necessary. I hardly think that the objections which rendered it desirable to offer to make these provisions were anything more than frivolous or in some cases, slightly factious. I offered to make them and I must say I was somewhat surprised when I had done so to find Senator O'Donnell rebuking me for having offered to do so. I freely offered them because they did not in the least bit interfere with the object of the Bill as I intended it. I offered on the First Reading, and I offer again now to accept an amendment whereby the operation of this Bill will be confined to instruments which purport, on their face, to alter the statute law of the land, because it was in order to have some control over such instruments that the Bill was introduced.
I understand that, even with that provision, the Bill will not be acceptable, but I do want to make it quite clear if Senators are rejecting this Bill that what they are rejecting is merely an effort to allow this House to discuss the suspension or amendment of legislation which it has itself passed. If the House wishes to abrogate their powers, if it wishes, having spent time and trouble in the various stages of an Act, to allow that Act to be swept out of existence by the Order of a single Minister and not to have even the opportunity of making helpful criticism—then it is a matter for the House. I, at least, have put it clearly before them.
Senator Campbell accused me of crying "bogey-bogey." He said that my suggestion that the Minister for Justice might suspend the laws of the land and subject ordinary citizens to military courts, was fantastic. Senator Campbell had not read his Acts. In the 1939 Emergency Powers Act the power to do that was expressly excluded from the scope of the Act. But one year afterwards, in the 1940 Emergency Powers Act, the Government expressly took power to do it and, quite frankly, I can conceive a time when there might be occasions in this country—occasions within the next year, perhaps—when it would be a proper and desirable thing to do. But if it be a proper and desirable thing to do, this measure would not prevent it being done in any respect, would not render the Minister liable to impeachment for anything done under that Act, and surely it is a remarkable thing to say that this House wishes to preclude itself from the possibility of discussing subsequently this desirability.
I pass now from the arguments which, as I say, were so unreal that at times I almost felt I was back with Alice in Wonderland, and if I were to cry the magic words: "You are nothing but a pack of cards" or, perhaps, "You are all a pack of votes" that the whole thing would dissolve and I would find myself back to the realities of the Bill. The realities were touched upon by the Taoiseach and, first of all, by that great realist, Senator Hayes.
There is one argument, an argument which Senator O'Loghlen has repeated, the force of which I have felt very strongly, because it is a real argument. That is the argument that it is unnecessary to pass this Bill, because we can do indirectly what it proposes to give us power to do directly. Senators will observe that the use of that argument by the Taoiseach completely sweeps away all the other arguments that were used against the Bill, because to use that argument is to admit at the beginning that the power to discuss and control legislation is an absolutely necessary thing, and that the only reason for suggesting that the House should not give a Committee Stage to this Bill is because the absolutely necessary provisions of the Bill can be arrived at in practice by another way around. I said in opening the Second Reading that there is, in fact, a hole in our constitutional fabric, that "the north wind may undo it with its sleety whistle through it," that it is a gap to be stopped one way or another. Senator Hayes and the Taoiseach say "There is the danger, but you can stop it with a clout". I say that if that is so why not complete the edifice and stop it with a brick?
Why should we have the elaborate system of bringing up a special motion which certainly may bear the appearance of a vote of censure if we can provide a proper constitutional method, whereby the matter can be brought before either House by way of helpful criticism and in a way which nobody can suggest is in the form of an attack upon or a censure of the Government? My objection to the kind of motion suggested by Senator Hayes is this: it is a motion which, on the face of it, can have no effect. It could have no practical effect in the terms in which it is couched.
Therefore, it must be something in the nature of an expression of disapproval of the Government. If you have machinery provided such as this Bill provides, whereby in the ordinary course of things, the members of any House or of any Party who think that an Order may be improved are enabled almost as a matter of routine to bring it before the House and offer their criticism in a channel that is being provided as part of the Constitution, then, at once, such discussion takes its proper place. It is not given undue importance. It is not an attack upon the Government. It is not a special motion, out of the ordinary run of things, a motion which could have no effect. It is merely putting into effect part of the necessary machinery of Government.
That, I think, is the answer to the one argument which has pressed very strongly upon me, the argument that this Bill may in some respects be unnecessary because we can do the same thing by a different method. I ask you to make it a constitutional method. I ask you not to put the members of either House in the position of having to table a special kind of motion.
There have been at least two Orders, in the short time since I have been in the House, that I thought required discussion. I avoided putting down a special motion —I waited for the Estimate in the case of one of them— because I did not wish to give a discussion, in which criticism might be embodied, the appearance of an attack. If you pass this Bill, you will always enable us to help whatever Government is in power by giving them an opportunity of mending their hands. At the present moment, you cannot do that, except by way of a special motion.
I think I have dealt with all the arguments. I believe that this is a good Bill. I do not believe it requires amendments, although I have offered to make various amendments in order to meet what I think are the rather fanciful suggestions that have been put forward. I ask you to treat this Bill for what I believe it to be: a perfectly adequate solution of a difficult problem which has been admitted by the Taoiseach. It enables the Government to act at once. It enables the Government to make any Orders they like, despite the existing law. It enables the Government to do all this with complete safety, because they never can be accused in respect of anything done under that Order, of having acted illegally; but it does preserve to this House the power of criticism, of helpful criticism, and, finally, the power of saying, after due consideration, and without in any way interfering with what has been done already, that they think the Order should cease to be valid in its existing form. I believe that this is a good Bill, and I ask you to vote for it.