I move:—
That Seanad Eireann requests the Government to furnish, in the form of a White Paper or otherwise as may be convenient, particulars of the several statutory or other enactments now in force which authorise, on terms analogous to the provisions of Section 281 of the Mental Treatment Act, 1945, a Minister of State by Order to adapt, amend or modify Acts of the Oireachtas or any statutory or other enactments; the number of Orders made under each of them and particulars of the several statutory or other enactments so adapted, amended or modified by virtue of each such Order, and the extent of such adaptations, amendments or modifications.
After the discussion to which we have listened to-day, it is hardly necessary to remind the House that its functions in relation to the making of legislation are somewhat limited. As everybody is aware, any Bill that comes before this House can become law within a period of three months in the form in which it reaches the House, whether we like it or not. It is understandable, therefore, that members may have some reluctance to devote the time and attention to legislation which must be devoted to it in the Dáil. I do not want it to be inferred, however, that because of these circumstances the members of this House are less attentive to the legislation which comes before the House than are the members of the Dáil. On the contrary, I think a substantial number of members of this House pay great attention to the business which properly comes before us and devote a very great deal of their time to the study of the legislation which reaches them and they endeavour to amend it and improve it.
There is one function which, it seems to me, the House should perform and it is a function that the House alone can perform in the circumstances of the case—that is, to give attention to, and watch closely, what is done outside Parliament under the authority of the legislation passed through both Houses. Everybody is familiar with the practice which has grown up of giving Ministers wide powers to make regulations by Order which, when made, have the effect of an Act of the Oireachtas. In many cases the regulations which are made under these Acts cover a very wide field. In bulk they are probably five times as great as the Act which gives rise to them.
This motion is not concerned with the making of regulations in the ordinary way; it is concerned with a very narrow field, but one of great significance in the realm of regulation-making by Ministers. The proposal in the motion is that a White Paper be submitted setting out particulars of the several statutory or other enactments now in force which were made under the authority of Acts of the Oireachtas or earlier legislation, authorising the Minister to modify Acts of Parliament. So far as I have been able to discover —although I do not at all assert that I have made a very careful study of the problem—the origin of this procedure may be found in the Local Government Act of 1898. Section 104 of that Act authorised the Lord Lieutenant of the day by an Order in Council to declare that certain stated provisions of British and Scottish Acts of Parliament would have effect in Ireland. There are two things to which I want to draw attention in that regard. In the first place, there was no power to apply any Act except an Act mentioned in the Statute as being capable of being applied to Ireland. In the second place, the Order which applied these enactments was not an Order made by a Minister or by a Government Department; it was an Order in Council. We have no machinery equivalent to an Order in Council. The Order is now made by a Department or a Minister.
I want to emphasise that the procedure followed in 1898 was the making of an Order in Council applying certain named and specific enactments—not a roving commission modifying and applying anything one wished—but under that clause, Section 104 of the Local Government Act of 1898, we got the Application of Enactments Order which as far as I remember runs into 50 foolscap pages of print. What has happened since then? Take the Local Government Act of 1925. Section 86 of the Act says:—
"The Minister may by Order.... make such adaptations of any existing enactments (including any Local Act) relating to any matter dealt with or affected by this Act as appear to him necessary or expedient for carrying this Act into effect."
That is a very wide departure from the principle contained in the Act of 1898 and, so far as I know, nobody outside official circles can have any knowledge of what was done under Section 86 of that Local Government Act. I suppose the legal members of this House will be familiar with what is done and will be able to tell us where these Orders, if there are such Orders, may be found.
I have in my mind the position of an ordinary member of a county council, an urban council or of any local body, whether a corporation or not, who is face to face in his representative capacity with the effect of regulations about which he can have no knowledge. You can imagine a member of the county council in Kerry, Donegal or Galway coming into a meeting, to discuss a matter which appears on the agenda, having a view of his own as to how it might be dealt with and he is confronted with the manager or the clerk who tells him, "You cannot do that; it is prohibited by an Order made by the Minister under Section 86 of the Local Government Act of 1925". Whether the clerk is right or not—he is not always right in these matters— the member of the council is powerless because he has never seen the Order. He is not in a position to say whether or not the Order prohibits him doing what he wants to do.
We go further and we get the Public Assistance Act of 1939. You will observe that in this case the authority given to the Minister goes still further. Section 89 of the Public Assistance Act says:—
"The Minister may by Order make such adaptations and modifications of any enactment in force at the commencement of this Act and relating to any matter or thing dealt with or affected by this Act as appear to him to be necessary or expedient for carrying this Act into effect or for enabling this Act to have full force and effect."
You see a number of new words inserted in that section which did not appear in Section 86 of the Local Government Act of 1925. I imagine these words were inserted because they have some meaning. I cannot imagine a draftsman importing new words and phrases into a section unless it is done for a purpose. I assume that the purpose it was intended to have was that Section 89 of the Public Assistance Act should have a much wider application than Section 86 of the Local Government Act. Section 281 of the Mental Treatment Act is almost identical with Section 89 of the Public Assistance Act and we shall have, in the course of the next few weeks, other Bills in which there is a continuation of this principle of conferring on a Minister power to modify, to adapt or to do pretty well what he likes with any Act of Parliament so far as he considers it necessary that an alteration should be made in the existing statute to enable him to do what he is asked to do under a particular Act. Where the layman who happens to be a member of this House or of a local authority is to be acquainted with the activities of Ministers under these provisions I do not know.
I am aware from personal knowledge that officials of public bodies do not even know where they can lay their hands on some of these Orders. I remember on one occasion being concerned with interviewing an important official of a county council. Some questions had been asked to test his knowledge of local administration. He was looking for promotion and casually I asked him the question whether he was familiar with the Application of Enactments Order. He said he had never seen it. I said: "Surely there is a copy of the Application of Enactments Order in the office of the county council." He replied: "There is; the secretary has a copy locked up in the safe and it is very hard to get at it. I have never seen it." This man was a highly placed official. I said: "Would not the secretary of the county council let you take it out and read it?" He replied: "He would not; he would not give a copy of it to anybody living." That is the experience of a person who had a responsible position in the office of a county council. How can the county councillor who comes up from a remote part of the country to attend a meeting of the county council become familiar with the provisions of those Orders when a highly placed official whose job it is to administer them cannot lay his hands on a copy?
What I am asking in this case is that a White Paper be submitted, setting out briefly the names of the Acts which have been modified or adapted, and showing the effect of the Orders made for the purpose of modifying or adapting them. I think it is a reasonable request, and I think it is the kind of thing in which this House particularly should be interested. As I have said, if they cannot have the same effect that the Dáil has on shaping the character of legislation, at least they have the function of seeing what is being done outside the Oireachtas under the authority of statutes. That is a function which cannot be fulfilled by the Dáil because of the nature of its work, and because of the kind of tasks which come before it. For instance, we know that in the Dáil a considerable amount of time is devoted to consideration of the Estimates for Public Services. We are saved all that. Therefore, I submit that it is incumbent upon us to pay attention to what is being done, as in this case, under the authority of statutes, and to see that the public knows what is being done and how it is being done.