Seanad Éireann debate -
Wednesday, 16 Apr 1947

Vol. 33 No. 17

Committee on Statutory Orders—Motion.

Mr. Duffy

I move:—

That as soon as may be after each Seanad election the Seanad shall appoint from amongst its members a committee to be styled and known as the Committee on Statutory Orders;

That the Committee on Statutory Orders shall consist of 10 members to be selected by the Committee of Selection, of whom five shall constitute a quorum;

That it shall be the function and duty of the Committee on Statutory Orders to examine the regulations and Orders capable of being annulled by either House of the Oireachtas which are made under statute, from time to time, by the Government or a member thereof and to report thereon to the Seanad.

This motion has been on the Order Paper for a very long time and I have no doubt it has received the attention of the members of the House and that my task, therefore, will be rather simple. I have made no effort to ascertain whether this is an acceptable or an objectionable motion. I am assuming that, in the main, it will not arouse any serious objections. If I thought it would create any difficulty in its present form, I would be willing to have it suitably amended. I do not even suggest that the present form is the best way in which to express the purpose in view, but it gives us an opportunity of discussing a matter of considerable importance to this House. That matter is the need for establishing some form of machinery which would enable this House to perform one of its principal functions, namely, to keep a check on the delegated legislation which is made in Department offices and, in some cases, outside Departments by local authorities and other bodies which is laid before the Houses of the Oireachtas.

There are various kinds of Orders made under the authority of statutes. For instance, you have the provisional Order. That is a form of delegated legislation which has fallen into disuse in this country to a considerable extent. I am very glad to notice that it has been revived quite recently, in a manner that is entirely satisfactory. Senators will recall that, in the Harbours Act, the Minister made provision in certain circumstances for the use of the provisional Order, that is, an Order which has no effect until it gets confirmation by statute. One of its great features is that it arises out of an inquiry of some kind, an inquiry by the Minister on the application of a harbour authority, or a public inquiry in relation to an application from a local authority desiring to take over possession of land or property of any kind. The public are informed of what is being done and have an opportunity of objecting and of offering evidence in opposition to the proposal. It is only when these regulations are complied with that the provisional Order is made and then it is still provisional until confirmed by statute.

We are not concerned with that kind of procedure here, but only with the Orders made under the authority of legislation passed by the Oireachtas, when these Orders are tabled and, having been tabled, when it is competent for either House to annul them. That brings us down to a narrow limit, to the Orders which may be annulled by a vote of either House of the Oireachtas. It is interesting to know that this subject has interested this House and its predecessors for more than 20 years. As a matter of fact, I think it was in 1923 that the late Colonel Maurice Moore moved a motion here to establish some form of machinery so that the House could excercise control over delegated legislation. He went further and thought that the committee should be consulted in relation to Bills before they were introduced as well as in the examination of statutory Orders made under the legislation. In 1923, of course, nobody thought that statutory Orders would occupy the prominent place they have occupied, particularly in recent years, in regard to our legislation. People think mainly of legislation as Bills which would not always be clear and they do not think so much of the Orders and regulations which may be made by authority of the Legislature.

That effort by Senator Colonel Maurice Moore was followed up subsequently, I think, by a proposal from Senator Douglas and later, in 1929, by a proposal made by Senator Thomas Johnson. In the intervening years the question of keeping track of delegated legislation has occupied the minds of people not merely here but in most democratic countries. In Britain, for instance, the subject was raised frequently in the House of Commons, and in 1944 the Coalition Government accepted a proposal for the establishment by the House of Commons of a Parliamentary committee to advise the House in relation to legislation of this kind. I do not know if I can quote the actual form of the order made by the House. The terms of reference are pretty long, but they will be found set out in the Third Special Report of the Select Committee on Statutory Rules and Orders published by order of the House of Commons on the 29th October, 1946. Anyway, it was a committee of pretty wide powers in relation, I should say, to orders which are placed in the House of Commons and are capable of being annulled. Subsequently, the Parliament of Northern Ireland took steps to secure a similar check over delegated legislation within its jurisdiction. The terms of reference in that case will be found in the Fifth Report of the Parliamentary Joint Select Committee on Statutory Rules, Orders and Regulations dated the 25th February, 1947. In the case of the Parliament of Northern Ireland there was a joint committee representative of both Houses, but I should say that the idea was the same in both cases, except that the distinction is made that the committee in Britain is established by the House of Commons and consists of members of the House of Commons only. In that case, however, it is well to bear in mind that there is an old procedure in Britain by which a special committee of the House of Lords is selected after each new Parliament is elected. The committee is selected by the House of Lords. It is a committee with certain limited powers. I cannot lay my hands on the document setting out its powers, but, in any event, that committee of the House of Lords has placed upon it the function of examining certain types of orders and of reporting in relation to them.

Now, in case any member of this House is apprehensive that this proposal is aimed at limiting the powers of Ministers to make Orders. I want to say at once that it has no such purpose. I am entirely in favour of conferring on Ministers the power to make regulations within such limits as may be prescribed by the Oireachtas. I do not see how you could carry on legislation in the modern world without these powers, unless the legislation is going to be loaded down with all kinds of detail which, in my opinion, is undesirable, and in any event is impracticable. Every Bill that passes through both Houses contains provisions enabling Ministers to make regulations covering a number of things, some of them specified in the Act and others merely implied. In this House in particular we have insisted that, so far as these Orders involve an expansion of legislation itself, they should be tabled, and that there should be power in the Oireachtas to annul them. A considerable number of Orders are made which are not tabled, and a considerable number of Orders are tabled which cannot be annulled, so that in fact the number of Orders to which this motion is directed is rather limited.

I have been looking at the Order Paper of this House for the 13th November, 1946. That was the date upon which the House resumed after the autumn recess. It contains a list of 46 statutory Orders and 16 non-statutory Orders which were laid on the Table during the recess. I think only 30 of these Orders are capable of being annulled so that the actual number of Orders capable of being annulled, although substantial, is probably less than half the number of documents laid on the Table. Now, it may be asked if there is no objection to the making by the Minister of these statutory Orders, is there any particular need for a special committee to examine them? I think there is. If there is no special body delegated by this House to examine these Orders, then it is the business of all the members to examine them, and if they think fit call attention to an Order which seems to be objectionable for one reason or another or to put down a motion to have the Order annulled.

I should perhaps stress the point that there is no power in this House to amend an Order made by a Minister under statute. The power conferred on the House is the power of annulment, not the power of amendment, and in many cases where objection is taken to an Order it is taken on some particular ground that perhaps would not normally call for annulment but for the amendment of the Order. There is no power of amendment, however, and of course the matter comes before the House only if some member of the House puts down an annulling motion. To put down an annulling motion involves, on the part of members, the obligation of each member for himself going into the Library or otherwise getting a copy of each Order as it is made, of reading the Order and making sure that he knows what it is about as well as making sure that it is an Order that is capable of being annulled because, as I have said already, a number of the Orders which are Tabled cannot be annulled.

The ordinary member of this House will not move that motion without having recourse to the statute under which the Order is made to satisfy himself that it is one which can be annulled. There is a tendency in certain quarters to say that the Minister and his staff take great care in relation to these Orders and that there is nothing wrong with them. I think that that is a wrong view. If the committee were never to make a report to the House, under my suggestion those responsible for drawing up the Orders would take good care that they were in proper form and did not exceed statutory authority. The mere existence of the committee would be a check and would ensure that the Orders would be kept within proper bounds and would conform with the statutory requirements.

I was interested to read an advertisement by Córas Iompair Eireann before Christmas announcing certain restrictions on the use of trams by the public. I was sufficiently curious to go to the Library and look up the statute under which the Order was made in order to ascertain whether Córas Iompair Eireann had power to impose a fine of 40/- on me for refusing to leave one of their trams at the Pillar on a wet night. To my surprise, I found that Córas Iompair Eireann had no such authority however. The first publication of the advertisement took place in the morning papers of 21st November, and the paper I have before me is the Irish Press. The second publication took place on the 28th November, 1946, and stated:—

"Notice is hereby given that Córas Iompair Eireann, having their principal offices at Kingsbridge Station, Dublin, pursuant to the provisions of the Tramways Act, 1870, have made the following by-laws and regulations."

Then the company goes on to set out the regulations. A person using a tram must, according to those regulations, leave the tram at the terminus, and the Order concludes:—

"Any person offending against or committing a breach of these by-laws or regulations, or any part thereof, shall be liable to a penalty not exceeding 40/-."

I do not know whether the Constitution contemplated Córas Iompair Eireann imposing a fine of 40/- on me or any other citizen. If I did not pay the fine, I suppose I should be liable to imprisonment.

Mr. Hayes

The fine would not be imposed by Córas Iompair Eireann; it would be imposed by a court.

Mr. Duffy

The conviction would be but this is the company's by-law. That regulation was made under the authority of the Tramways Act, 1870. When I look up that Act, I find that Section 2 states: "This Act shall not apply to Ireland." I commenced to search other statutes. I assure the House that I spent an entire day, with the assistance of the librarian, digging up old statutes and old orders by the Dublin Tramways Company, covering the period from 1896 to date, to ascertain if there was any statute applying that Act of 1870 to Ireland. I could not find any. Every member of the House could not afford a day of searching for details of an Order of this kind. I assure the House that I cannot afford to spend a day searching the Library for information every time I want to inspect an Order made by the Minister or anybody else.

I am not challenging the company here. There is another way of doing that. My way of doing it would be to remain in the tram on a wet night and refuse to leave. If the company were to prosecute me, then I could ascertain where there was any lawful authority for this Order. I want to draw attention to the fact that some people take a great many liberties. These liberties will be taken in Government offices, the Electricity Supply Board, Córas Iompair Eireann, and other offices if nobody is likely to have the time to check up on what they are doing. I want to draw attention to another incident which, I think, is important. I am speaking now not of the making of an Order but of the carrying into effect of the obligations placed upon Government Departments by Orders made by themselves. Section 12 of the Unemployment Insurance Act, 1920, provides that such sum as the Treasury may direct, not exceeding one-tenth of the receipts of the unemployment fund, shall be applied as an appropriation-in-aid for the purpose of salaries, remuneration and other expenses in carrying the Act into effect. I do not want to lay any stress on the fact that the maximum is fixed at one-tenth because the Unemployment Assistance Act of 1933 increases that limit by 50 per cent. I do not want anybody to tell me later that I overlooked the authority conferred on the Minister to increase the amount by 50 per cent.

What I want to complain about is that, under the authority of the 1920 Act, a statutory Order was made on the 3rd December, 1921, which provides that, as soon as may be after the 31st March in each year, the Treasury—now the Department of Finance—shall ascertain whether the one-tenth or whatever sum may be applied in aid exceeds the expenditure authorised by Parliament. In other words, the intention was that the Department of Finance should ascertain whether the appropriation-in-aid exceeded the money voted for the purpose of unemployment insurance and report that fact to the Minister for Industry and Commerce. Was that obligation carried out? It was not carried out by the Department of Finance. I came across the omission only by accident. I noticed on the Order Paper an announcement that the regulations of 1921 were being revoked. The regulations were revoked. Then I set out to find what these regulations were and I discovered that they were regulations which required the Minister for Finance to prepare a return annually for the purposes of informing the Minister for Industry and Commerce whether in fact the Department of Finance was taking more money out of the insurance fund than they were entitled to do by statute and as in fact they have been doing to the extent of £100,000 per year. This is a reply given by the Minister for Finance to Mr. Martin O'Sullivan in the Dáil on the 4th December, 1946:—

"The regulations referred to in the first part of the question were revoked on the 11th November, 1946. The position is now governed by (a) the Unemployment Insurance (Appropriations-in-Aid) Regulations, 1946, made by me on that date, and (b) a direction given by me pursuant to Section 12 (3) of the Unemployment Insurance Act, 1920, that the maximum permitted by law should be applied out of the unemployment fund as an appropriation-in-aid of moneys provided by the Oireachtas for the purposes mentioned in the proviso to that section. The calculations mentioned in paragraph 7 of the earlier regulations were never made and no certificate was given under paragraph 8."

Take note of the last sentence. The calculations were never made and no certificate was given in accordance with paragraph 8. The regulations were made in 1921, and in the 25 years that elapsed between the 3rd December, 1921, and the 11th November, 1946, the Department of Finance never made the return required by the regulations. I do not know whether any member of this House, after these recitals, will question the need for an examination of the manner in which statutory rules and Orders are made and the manner in which they are carried into effect. I have said earlier, and I want to repeat it, that I am not one of those who desire to restrict the power of making regulations. I am in favour of the utilisation of this power to the fullest extent, so far as it is authorised by the Oireachtas. But I believe that in the interest of both the Departments and the citizens it is desirable that there should be some check and that it should be known to the public how this authority is exercised. The practice of publishing regulations, the practice of making them known to the public, has gone out of fashion. I have great doubts, personally, as to the legal position in regard to the publication of rules and Orders. There is an old British Act to which I will refer in a few moments, an Act of 1893, which requires the Government to publish every Order with certain defined exceptions, certain named exceptions, and, if a remember rightly, the Government must publish its intention to make such an Order 40 days before the Order comes into effect. This practice, of course, has gone by the board, and what creates some difficulty in my mind is the legal view of the publication under this Act. The question whether the Rules Publication Act applied in Ireland was raised in 1935 before Chief Justice Kennedy, and the Chief Justice said that the Rules Publication Act had been adapted by the Adaptation of Enactments Act, 1922.

When that was so, he said it has full force and effect in this country, and rules and regulations which are made without the Act of 1893 being complied with are bad. As we now know here, the Act of 1893 is rarely, if ever, complied with. However, Chief Justice Kennedy has not stated the law. He merely gave this as his opinion in the Irish Law Reports of 1935, page 263, but I notice that in the Irish Reports of 1941, at page 69, Chief Justice Sullivan says that the Rules Publication Act of 1893 does not apply to statutory rules and Orders made by the Government in this State as there has been no adaptation of the Act for this purpose.

I do not propose to discuss the merits of these two statements beyond drawing attention to the fact that they are directly and diametrically opposed and that they are the views of Chief Justices of the time. I contend, however, that it is essential in the public interest that the fullest publicity should be given to every rule and regulation made. Publicity is given to Bills by various methods. The public are usually aware of what is going on when a Bill is passing through the Houses of the Oireachtas. First and foremost the Bill is published or at least referred to in the papers. Then it is debated from all angles on the Second Stage in both Houses and its details are discussed in Committee so that by and large the public is not taken unawares so far as Acts of the Oireachtas are concerned, but the public are completely in the dark in regard to regulations. In the first place the newspapers do not bother very much noticing these regulations, and even if they had the greatest desire in the world to notice them they cannot do so because it would take newspaper men a very considerable time to know what the regulations were all about. Any member of this House who desires to find out how intricate regulations are will satisfy his curiosity by going to the Library and taking up some of the Orders which are tabled there and trying to unravel them. It is impossible in seven cases out of ten to know what the Orders are about unless you have regard to previous Orders and unless you have regard to the statute and a good deal of additional information which a member of this House cannot get without doing a considerable amount of research work, which takes time. I am pleading that the public should be informed of the making of regulations which affect the public interest, and I am suggesting that the appointment of this committee would assist directly in that regard, if it were to do nothing else.

Let me say briefly how I think the committee would work. I visualise Senators, irrespective of Party affiliation, selecting ten members of the House—that is, one-sixth—because of their interest in various kinds of regulations, to act as a committee whose business it would be to meet periodically—mainly when the House is sitting, so as not to cause any inconvenience to them—and report in a formal manner on the number of Orders made between two given times and the purpose of any Order which seemed to call for comment. If the committee considered that the Order or regulation was made without lawful authority or that it exceeded lawful authority, it should be its function to report that opinion to the House. If it considered that the regulation imposed on the public an obligation which should be made known to the public and widely publicised, I assume the committee would take steps to have that publication made. I think, too, that the committee would be entitled, as a committee of this House, to have the assistance of such staff provided by the House as it might require for that purpose.

In the case of Great Britain, the highest legal experts at the disposal of Parliament assist the committee. So far as I remember, the secretary of the British committee is the counsel to the Speaker of the House of Commons. In Northern Ireland, the committee is assisted by experienced civil servants. Apart from that, it is the practice in Britain, America, Australia and New Zealand to call before a committee of this kind any official of any Department responsible for making a regulation, so that the regulation may be explained to the committee. In other words, the committee, in making its report, will supply, first to the House and secondly to the public, an informed opinion in relation to an Order and will supply the public with an authoritative statement of what is implied in the Order.

A question might be asked whether, if the proposal is accepted, it would not be wise to have a joint committee. There is a joint committee in Northern Ireland, but not in Great Britain. That is a matter of opinion. My own view is that, in our circumstances, this work should be done by a committee of this House and not by a joint committee. The Dáil has work to do and responsibility to undertake which distinguishes its functions materially from ours. For instance, during the next three months, Deputies will be occupied in discussing Estimates for the Public Services. There are about 72 Estimates, all of which are capable of being discussed. What will happen eventually is that 30 or 40, or a substantial number, will be picked out by the different groups and Parties in the Dáil and made the subject of a debate lasting, perhaps, two or three days. That is work which we have not to do. Secondly, the Dáil is responsible for finance and on that account it appoints a special committee to examine the accounts of every Department of the State. In the course of that examination, the Committee of Public Accounts brings before it the officers of the various Departments and examines them— I think, on oath—and cross-examines them in relation to every item which they consider should be investigated. For the purpose of their work, that committee has the assistance of the Comptroller and Auditor-General and his staff, who will in advance prepare for them a commentary on the accounts of every Department of State. We are not required to do this work, nor are we entitled to do it, as we have no responsibility for financial matters.

However, if we are to do justice to ourselves and to the public and satisfy our own consciences that we are doing some useful work for the community, I do not think it is sufficient to justify the existence of this House if we come and go and sit on 30 days in the year. I believe there is time available to do other work and the most important work the House can do is to set machinery in motion which will enable Senators to keep a check on what is being done in Departmental offices in regard to regulations and statutory Orders, all of which have the force of law. Senators know that any such regulation made in Government Departments, which may never be published, which may never be read by the public, has the same binding force and effect as if it were a statute enacted by both Houses of the Oireachtas.

I was struck by the fact that, in certain cases, the judges commented with surprise on the manner in which these regulations are made without any attempt being made to publicise them. Speaking in this House at column 60, vol. 30, Senator Comyns said:

"Some rules that have been made under Acts of Parliament passed here have gone so far as to authorise a Minister to ignore the law of the land."

Chief Justice Kennedy said, in a case that came before him:

"that counsel for the State tried for a time to stand over these documents—that is statutory rules and Orders—and ultimately recognised that the ground was untenable. No legal basis for this new attempted extension of Departmental or Civil Service authority over the citizen was shown to us."

The Chief Justice commented that there was no lawful authority for the making of Orders which were produced in court as if they were Acts of Parliament. I have not referred to these matters for the purpose of criticising or commenting except in so far as it is a criticism of ourselves: as a criticism of this House that something should be pawned off as law which is not law. It may be replied that the same obligation rests on all of us, and that the 60 members are all responsible. I suggest that the manner in which the members of the House can discharge their obligations intelligently is to pick out a group from the membership of the House and say to that group "examine all these documents, and where the House has power and is authorised to annul one of these regulations tell us if you think it should be annulled."

I think that is not an unreasonable proposition, and I do not think it is one from which any member of the House will dissent. In this regard I assume that we are free agents. As no member of the Government has attended the House for the purpose of this discussion, I take it that the Government assume that we will do what we consider is wise and proper in the circumstances, and that they do not propose to influence our decisions or our views in any manner. I would urge, therefore, as strongly as I can that the members of the House would take serious notice of the dangers that are inherent in the present system of unchecked departmental law-making. I would ask them to bear in mind two things which are important in democratic institutions. One is that you must give the Government wide powers to deal with day-to-day incidents which cannot be foreseen and cannot be legislated for in advance. Secondly, you must have a check on the manner in which these functions are discharged. The purpose of this House is to maintain such machinery as will ensure that there is a check. I believe that these views meet with substantial agreement in the House, and I now beg to move the motion standing in my name.

Mr. Kyle

I second the motion. Senator Duffy has dealt exhaustively with this subject and has demonstrated to those of us who have listened to him with great care the need there is for a committee such as he suggests. I do not propose to attempt to follow Senator Duffy in the admirable speech that he has made, except to say that I think the House is indebted to him for the trouble he has taken in the matter. I am not at all certain, however, that the members of the House appreciate the amount of work which the preparation of that speech involved for Senator Duffy, especially when we bear in mind an incident that occurred here a short time ago. A Minister said, in effect, that he was not interested in the law but was interested merely in the Bill that he had before him.

He laid emphasis on the fact that certain other people had prepared the measure, and that he was prepared to take that as representing the final word on it. If that is going to be the mentality of the Seanad on this matter, then it would seem to me to be a reprehensible state of affairs. I hope that the labour which the preparation of his speech involved for Senator Duffy has brought home to the minds of those who listened to him the importance of having a committee of the character that he suggests set up, a committee to examine the Orders and regulations laid on the Table of this House.

Mr. Hawkins

I agree with the last speaker that we must appreciate all the work which Senator Duffy must have put into the preparation of his speech. Yet, I feel that he has not convinced us, and that he did not make a case for the setting up of this committee. He told us that the purpose of the motion was to have a committee set up, consisting of members of the House, which would examine the various rules and Orders that are laid on the Table, and particularly those Orders that are capable of being annulled, and that would then report to the House. The Senator did not convince me, and I am sure he did not convince other members of the House, that it is necessary to set up a committee for that purpose because every member of the House has the right to examine those rules and regulations. If he thinks that any of them should be annulled he can put down a motion and obtain the views of the House on them. Senator Duffy said that would involve a lot of work for a Senator; that it would mean that a Senator would have to devote a lot of time and patience to the examination of these Orders. If that is so, does Senator Duffy think that each individual Senator who has a responsibility in that matter should pass over his or her responsibility to a committee and have the work done by the committee? I do not think that a case has been made for the setting up of this committee. If the House sets up the committee, what power will it have? Senator Duffy proposes that it should report to the House. It may recommend that a motion should be tabled for the annulment of the Order in question. Senator Duffy suggested that this committee would meet when the House was in session.

Mr. Duffy

If the Senator wants to deal with the motion in a serious way, I ask him not to press that point. Surely the committee would decide for itself when it would meet.

Mr. Hawkins

One of the points made by the Senator was that the operation of this motion would not involve any great inconvenience to Senators, because it would meet when the House would be in session. I should like to point out that the issue of Orders does not always coincide with the meetings of the House. It would be necessary for a Senator to table a motion for the next meeting of the Seanad.

Mr. Duffy

Within 21 sitting days.

Mr. Hawkins

Sometimes, the Seanad does not meet for more than 21 days.

Mr. Duffy

Sitting days.

Mr. Hawkins

The point on which Senator Duffy did not convince me was the necessity for this committee. There is plenty of machinery at present for doing what the committee would do. A Senator can bring a motion before the House to have any Order annulled. If an Order affects any section or group of the public, I am sure that it will be brought to the notice of public representatives in the Dáil or Seanad by interested parties with a view to getting additional information or to having the Order annulled. We have a number of committees in this House and I do not think that the proposed committee would serve any useful purpose. Therefore, I am not prepared to support the motion.

Sir John Keane

I hope there will be no suggestion of collusion when I congratulate Senator Duffy on the service he has rendered to Parliament in bringing forward this motion. It has involved a great deal of research and it is a motion to which we should give very serious consideration. The dangers of delegated legislation have been before the public for many years. I cannot recall the Senator mentioning Lord Hewart.

As Lord Chief Justice of England, he was qualified to speak with preeminent authority on the dangers of delegated legislation. He published a book on the subject. I feel that there is a special duty on this House to examine this matter in the way Senator Duffy suggests. I think that his suggestion is an admirable one. Despite what Senator Hawkins said, we are not overworked in this House and we have plenty of time to look over those Orders and examine them, with a certain expert approach which few members are able to give individually at present. They mostly refer, as the Senator said, to previous Orders and they are tied up with legislation. Although I agree with Senator Hawkins that there is a responsibility on every member of this House to read these Orders and satisfy himself regarding them, I wonder how many Senators could conscientiously say that they do so. I do look through the Orders but I cannot say that I do much more, unless the subjects dealt with are subjects in which I am specially interested or of which I can claim to have some special knowledge. Most of these Orders deal with customs duties and quotas, of which I cannot claim any special knowledge. It is wrong to suggest that this work could be equally well done by individuals and that, if done by a committee, it would detract from the responsibility of the individual. The individual will always be able to act independently of the committee. It may be evidence that these Orders have been very well done that so few motions have been put down to challenge them. I am rather afraid, however, that they are so complicated that few of us have been able to get at the inwardness of them. The Senator made a very serious and worthwhile contribution to the cause of Parliamentary control and I hope that this motion will be approached in a cooperative spirit, not in a Party spirit, and will be carried by the House.

Mr. Hayes

It is difficult to know exactly how one ought to approach this motion. The motion itself is very simple, perhaps too simple, but the problem which the motion seeks to solve is one of very great complexity and one which has been developing in complexity for a considerable time. Senator Duffy appears to me to be in a dilemma. As a socialist—if I may apply that description to him—he desires to give Ministers all the power possible to interfere in as many directions in our life as possible. As a parliamentarian, he desires to keep track of these Orders and to keep control of the Ministers. I suggest that he cannot do the two things at the same time.

Mr. Kyle

Why?

Mr. Hayes

It is too hard.

Mr. Kyle

Nonsense.

Mr. Hayes

Perhaps Senator Kyle, who does not often give us the benefit of his views, would tell us how to reconcile these two things. I should like to prevent Ministers having these powers if I could but it seems to me that you cannot take up the attitude of endeavouring to get the Government to interfere more and more in every department of life and, at the same time, keep a Parliamentary check upon the operations of the resulting Civil Service, because there can be no doubt that, when Ministers get additional powers, they require more civil servants. When they require more civil servants, they want to give more power to the civil servants. How Parliament could keep track of all the various acts by civil servants, acts which they do legally and properly under statutes passed by Parliament, I frankly do not know. I do not think that you can get a solution of so difficult a problem in modern life by so simple a motion as this. I do not think that there is anything sinister in the Civil Service or that civil servants lay themselves out to make illegal Orders or to seek illegal powers. I do not believe that they have sinister motives of any kind. They are just ordinary human beings, doing a very difficult job, which is becoming more complicated every day. The difficulty is to find out whether they are doing it in accordance with the law.

I wonder whether, if Senators acting singly cannot do this, Senators acting as a committee could do it, and if they discovered something what particular steps they could take. For example, Senator Sir John Keane said that experts would be needed. If we need experts it would seem to follow that we are not experts ourselves. If I am not an expert, if Senator Duffy is not an expert, or if Senator Hawkins is not an expert, the three of us when we meet in a committee do not become experts. I feel that the problem is one that is very difficult of solution. If we are going to have any kind of committee I suggest that we would have to be very explicit with regard to the powers and the terms of appointment of the committee. That could not be achieved by this motion. A British committee of a similar character issued a report on these Orders and rules in October, 1946. It was appointed on 23rd August, 1945. It was known as a Statutory Rules and Orders Committee and was given power to send for persons, papers and records. Power was given to examine civil servants, to ask for documents from civil service departments, and the committee was to report to the House of Commons on certain grounds and on these only. I think you would have to have something of that kind in the proposed committee and even so I doubt if it would work.

There would be no value in the committee unless it had the assistance of the officials who drafted the Orders or some persons on their behalf who could explain the position. The situation is as Senator Duffy remarked. I agree with what Senator Sir John Keane said, that the Senator must have put a great deal of work into examination of these very difficult and tangled Orders. The only power this House or the other House has is to put down a motion of annulment. We put down such a motion ordinarily to get information. Whenever such a motion has been put down it was to get information rather than for the purpose of getting an Order annulled. No machinery has been devised—and I think none could be devised—to allow these Orders to be amended. I find several objections to this motion. In the first place, it should be a joint committee of both Houses, consisting, say, of five members of the Dáil and five members of the Seanad, and I think it should have power to summon certain people before it. In the next place, it should have certain things fixed upon which it might report. What would that amount to in the end? It would amount to this, that some individual who had read a particular Order, or knew something about it, would deal with that Order and would have the advantage in the committee of arguing privately rather than publicly in the Dáil or in the Seanad. That might be an advantage.

Mr. Sweetman

It might be a disadvantage.

Mr. Hayes

It might be a disadvantage. At present a Senator can walk into an office and make an inquiry. We should not get into the position, however, of thinking that we are going to solve a problem which is rather difficult merely by sitting on a committee. Like Senator Sir John Keane, when I get the Orders sent me I look at them, and like other people, I read some of them for the Irish rather than for what is in them. Whenever a matter upon which I have some knowledge is dealt with, I read the whole Order, and I go back to see what it means. But I could not undertake to read all Orders or to understand all Orders. Perhaps I am taking too pessimistic a view, but I am afraid I would not understand all of them. One could only grasp what is in a certain number of them. The real difficulty is that members of Parliament do not understand a number of things contained in these Orders. That is the simple truth. If members of the Dáil, the Seanad or the House of Commons or House of Lords are not in the position that they can inquire into particular Orders, I do not think, when you find them in committee, you can get any better work done than could be done singly.

There has been a suggestion to get experts' advice. What is that? Experts' advice would be, presumably, the advice of officers of either House who examined the question. What you really require about these Orders is a political examination. That is what I should like to have. What I find wrong about the Orders is politics, using the word politics, not in a dirty sense, but in a public sense; its influence on the lives of the people, to see whether they are exceeding their powers. You will not get the experts who will give you that kind of examination in a committee composed of members of different Parties. Frankly, I think the motion as it stands is too simple, and would have to be passed in a form asking the other House to join with us in setting up a joint committee, and giving that committee power to send for papers and records. As in the case of the British committee the motion should define the particular thing on which the committee was to report.

Even when the committee reported unless somebody in either House was sufficiently interested to put down a motion and to argue it, I do not think you will get any work done. Ultimately the Parliamentarian himself is the best safeguard and the Parliamentarian is the type of person that is sent to Parliament. If people who are ignorant, careless or lazy are sent to Parliament —and a great many people are careless and lazy—you cannot remedy the situation by a joint committee. The setting up of machinery to remedy the position is not going to help. The position in the other House most emphatically is that a Parliamentary majority exists, and that Parliamentary majority will back the Minister. The same thing, if I may say so with bated breath, exists here.

What good are you going to get from a committee any more than from an examination of a particular Order by an individual who puts down an appropriate motion? I feel that the whole tendency of legislation is to deal with more and more topics, and to make Government powers more and more wide, by interfering more and more in things, necessarily involving complicated legislation and the making of statutory Orders. Anybody who supports that general tendency is not able to devise any scheme which will keep it from resulting in a spate of Orders of which nobody can keep track. I am afraid I am not very hopeful but I am endeavouring to put the problem as I see it. It is not a problem that is easy of solution.

If any Senator puts down a motion about an Order and explains it then we can discuss it. As far as we are concerned, this can be said in our favour, that we give it good discussion, not Party discussion. If nobody is prepared to put down a motion, then I do not think there is any use in setting up a committee, anyhow a committee with no terms of reference. Unless the committee gets power to summon witnesses and to interview civil servants it could make no progress.

The only way to get the information is to inquire the purpose for which the Order was made. That brings up the question, whether the Government as a matter of policy would agree with it. If they would not, the committee would be of little value. I think, also, you should restrict the powers of the committee to the consideration of certain types of things. In the meantime the real difficulty is that no machinery that anybody could devise by way of motion or committee is a sound, working substitute for the interest taken by a member of Parliament in his job. This job is becoming more complicated every day and Senator Duffy is assisting in making it more complicated and Senator Duffy's Party and other Parties too. Nothing could be more satisfactory than a member of the House with special knowledge using it and bringing it to bear on what is being done and convincing his fellow members. If he cannot do that, a committee cannot do it.

Mr. P.J. O'Reilly

I am sorry that I had not the opportunity of listening to Senator Duffy's remarks but I would like to say that in my opinion the general trend of the motion should be supported and that if details are necessary to make it more effective they could be arranged by means of recommendations from the committee itself. When I saw this motion first I was reminded of a remarkable incident which I experienced many years ago and which illustrates the need for a committee such as the one proposed. I admit that probably 95 or even 98 per cent. of all the statutory Orders made are quite harmless and are quite in keeping with the spirit of the Act as passed by both Houses of the Oireachtas but there is just that possibility that a Minister might issue an Order which might have very serious consequences. The particular incident to which I refer concerned a very important case in the High Courts. One of the present Supreme Court judges was actually concerned in it. He advised his client that in his opinion the client had an unbeatable case.

He based his argument on the existing position created by statutory Order but in the very middle of the trial the Minister issued an Order countermanding the previous one or modifying it. The result was that that particular leg of the case failed completely but, luckily for the party concerned, there were other props to the case and it was successfully carried through. It looked very peculiar that in the middle of this case this Order should be made, and while such power rests in the hands of a Minister there is always the possibility of a similar thing happening again. For this reason, which is based on my own experience, I think the general principle in this motion should be supported. Each and every one of us has his own work to do and we find it very difficult to examine more than a very small part of all the stationery issued by the Oireachtas. I do not agree with Senator Hayes when he says that such a committee could do nothing. You may have members of the legal fraternity here. If one or two of these were selected and a couple of others with specialised knowledge in other directions I see no difficulty in arranging the personnel.

Mr. Hayes

Does the Senator seriously think that lawyers would be better than laymen on this committee?

Mr. O'Reilly

I do not think that my remarks should be interpreted in that particular way. I understood the Senator to suggest that ordinary members of the committee would not be able to interpret properly the meaning of statutory Orders. I say, if you select the committee properly you will get a varied type of qualification and the committee as a whole should be able to perform a very useful work. As mentioned by Sir John Keane, this question of legislation by statutory Order is becoming very serious, not merely in England but, to a large extent, here. As I said before, I am quite prepared to concede that most of the Orders are quite harmless.

I have dealt with a lot of them myself from time to time, and no one could take exception to them. But there are other cases, the one I mentioned is one, that could have rather serious consequences. They might appear to be very innocent Orders on the face of them, but they might affect the interests of various people very seriously indeed. Although I had not the advantage of hearing the explanation given by Senator Duffy, I am prepared to support the motion and to recommend it to the House generally. It is not going to do any harm to the Minister, and perhaps it may make people responsible for issuing these statutory Orders a little more careful, and should the Minister contemplate imitating the example of the Minister I mentioned, he would be likely to consider the matter seriously before acting.

Mr. Baxter

Senator Hayes stated very well what the difficulties are in the way of this motion. At the same time, I would like to commend the industry of Senator Duffy on the preparation of his case. He indicated the manner in which this delegated legislation works, and there is no agreement at all, at least on this side of the House, on this point. But I think we have to be realists. It is important that in doing our Parliamentary work we should not commit ourselves to decisions that cannot be implemented. Senator O'Reilly referred to the fact that practically none of us has the time to keep pace with all the Orders we have been receiving. We hope they are going to be fewer in the future. If that is the fact how are we going to get this committee together, especially if it is going to take on itself the responsibility of examining all these Orders and passing on its recommendations? My experience is that there is no use in asking anybody to do a job of work unless he is a busy person. The others will not do it and never did it. That is how they manage not to be busy. If you want somebody to do the work you are not prepared to do yourself, you have to ask people who are already busier than you are. Where can we find those people? I do not know. I know the sort of people we would have to ask. Senator Hayes made a comment when Senator O'Reilly by inference left us under the impression that you would call on lawyers. I take it that what Senator Hayes had in mind is that if the Minister made an Order about a turf bank, Senator Hawkins or myself might be just as good an authority as to the value or suitability of that particular Order as the much more distinguished lawyers whom you might have in mind. Experts in the broad sense to be of value on this committee would have to be drawn from every class in society within the House. Even though that were done, in the case of an educational problem of a particular type with which Senator O'Reilly would be most conversant, if he were not a member of the committee and if Senator Hayes or Senator Mrs. Concannon could not find time to sit on the committee, would Senator O'Reilly feel he had discharged his duty by divesting himself of the responsibility to examine any particular Order in relation to education by the setting up of this committee?

Mr. O'Reilly

I do not see any difficulty. Could not the committee refer specialised Orders of that kind to people who would be capable of dealing with them?

Mr. Baxter

No matter what committee is brought into existence a member of the Oireachtas who is trying to discharge his duty cannot divest himself of personal responsibility to examine Orders that concern the affairs of the nation with which he himself is conversant. Personally, if Orders are made dealing with agriculture or kindred subjects I feel myself under an obligation to examine them. I do not know that it will save us work in that sense.

There is another aspect of the case which I put to Senator Duffy. Will the team work? Will they all pull on the rope? There are implications in a great many of these Government Orders, and although some of our distinguished colleagues on my right may now and again claim very loudly that this is a non-political Assembly, we have had the experience that it does not matter what they themselves believe; when it is a decision of a Minister, whether it is embodied in an Order or in a Bill, they feel themselves tied and that they must support that decision no matter what their conscience may dictate to them.

Mr. Hearne

May I say that my conscience is in my own keeping and not in the keeping of the Government or of Senator Baxter. In any vote I have given here my conscience has guided me.

Mr. Sweetman

May I put the point of view that thought that may be Senator Hearne's decision, I have acted as a teller at those corridors on many occasions and people have passed me many times saying it was a vote against their conscience?

Mr. Hearne

A matter of opinion is very different from a matter of conscience.

Mr. Baxter

We have the evidence of declarations in the other House that they believe one thing and have to do the other. Be that as it may, let us take a particular Order that is made and has been examined by this committee. Senator Duffy, if he is on the committee, may have one view and other Senators may have another and they want to make a report. If that report is detrimental to the interests of the Government inasmuch as it is a condemnation or criticism of the Order, it is my honest opinion that the committee will not work. I am not blaming the supporters of the Government. When the Minister for Industry and Commerce or the Minister for Agriculture or any other Minister makes an Order, it is not a very easy thing for a committee like that with Government supporters there to make a report to this House unfavourable to the decision the Minister has made. I am in favour of examining these Orders, and if Senator Duffy's proposition were feasible it would be an excellent arrangement. If such a committee could function in the right spirit and were really given liberty in these matters the Minister and the Civil Service would get considerable guidance of value from Parliament and no great harm would be done to political prestige. But things are as they are, and I honestly believe that if Senator Duffy got the committee set up, after a while in exasperation and despair he would throw his hat at it and say it could not function.

Mr. Duffy

How is it that that has not happened with the Public Accounts Committee?

Mr. Baxter

There is no comparison between them. The Public Accounts Committee can send for officials. The whole situation would be confronting this committee. In the first place, these Orders are embodying decisions of the Government in administration. Every Order that is printed and circulated is an invitation to this committee to express its view on every aspect of administration. It is expecting the absolute impossible that the people on one side and those on the other side of this House would be unanimous in approval of the Order.

Mr. Duffy

That does not arise, surely.

Mr. Baxter

Then I have completely misinterpreted Senator Duffy.

An Leas-Chathaoirleach

Senator Baxter should be allowed to proceed.

Mr. Duffy

On a point of order, I made it perfectly clear that this committee would not be expressing views on any Order.

An Leas-Chathaoirleach

That is not a point of order.

Mr. Baxter

I know that the Senator produced certain evidence that some Orders were made for which there was no authority. Surely, the Senator does not expect the House to accept it that this committee would just examine and determine whether or not the Orders are in accordance with the law. If that is what he wants he would need a couple of lawyers on the committee or he could go to the court for a determination. If the Orders are to be examined in the way that I interpreted Senator Duffy's point, I believe the Senator is expecting the impossible. There would be no reality about the committee and it would be largely wasted effort. In the end it could not possibly divest any Senator concerned about the contents of an Order of his responsibility to examine it for himself and be satisfied about it or, if not satisfied, of challenging it here.

The fact that this committee gave their imprimatur would not take away the right of any member of the House to introduce a motion here to have an Order annulled. I think that this committee would not work. I agree, of course, that it is highly desirable that all this legislation should be closely examined, but I am afraid that the machinery which Senator Duffy is proposing will not give him the results that he is looking for.

Mr. Kingsmill Moore

I am wholeheartedly in favour of giving a trial to the committee that Senator Duffy proposes. I agree with Senator Baxter that, as in the case of all experiments, it is quite possible that certain difficulties may show themselves when the committee tries to work, but that is inevitable. It is only when you set up a thing and give it a trial that you find out that difficulties, which originally seemed formidable, disappear under the pressure of goodwill and practicality. You also find out that certain difficulties which were never thought of arise and are appreciable.

Senator Duffy is making an attempt to tackle one of the elements in the breakdown of Parliamentary Government. In the early stages Parliament had tried to do everything and it did do everything. It concerned itself with the most amazing minutiæ of legislation. At a later stage it put a lot of matters for consideration into private Bills, such as railway Bills, but now the extent of administrative work and the number of topics which a Government concerns itself with are such that it is a physical impossibility for Parliament to deal closely with everything which has to be dealt with by a Government, so that instead of a thing being done by a Bill it is done by a kind of delegated legislation by a Government. That tendency has been increased by our practice here of having every Bill referred to a committee of the whole House. In a Legislature which is not so far from us, Bills are referred to select committees so that they can receive more extensive attention, a practice which, I may say, seems to have rather broken down in the last few months. Still it is a form of procedure which, I think, should commend itself to this House. That is not Senator Duffy's proposal. I merely give it as an example of the same kind of thing—not to attempt to consider everything in the House as a whole because it is impossible. The effect of it is that nothing gets adequate consideration.

There are three types of things which could be dealt with by a committee such as this and, I think, dealt with properly. There is the case of an Order which is completely and inadequately drafted, which is drafted so that nobody can understand it except the drafter, who thinks he knows what he means to put into it. It is not until some outsider comes to try to see what is the meaning of the Order that it becomes apparent that the drafter has not expressed himself or, as one judge said when dealing with a statutory Order concerning agriculture, in which I was concerned: "It looks as if it were drafted either by a farmer who had no knowledge of law or a lawyer who had no knowledge of agriculture." Now, when an Order such as that comes before a committee which is genuinely trying to see what is its meaning, if the meaning is, in fact, obscure, it will be apt to say that it is obscure and will say to the official concerned or to the draftsman: "We do not know what you mean; will you kindly make that clear?" and that would probably be done by an amending Order.

Secondly, there was the case which recently came before this Assembly. This was in relation to Orders made under the Censorship Act. It was a case in which certain considerations had completely slipped the mind of the people who had drawn up the Order. Because of that it was necessary to bring in a motion before this House to annul the Order in toto in order to have an opportunity of showing those portions of it which would clearly be incapable of being substantiated. The members of the House and the Minister had that opportunity, and on these matters being pointed out to the Minister, he immediately gave in and said that he would consider the matter from the point of view then put before him. Having heard the case made, he acceded readily to at least one of the alterations suggested. It was necessary to occupy the time of the House, and to have an annulling Order put down, in order to do that. Had there been in existence a committee such as that envisaged by Senator Duffy, it is more than likely that some member of the committee would have seen the difficult points which were involved, that he would have it referred back, and that the Order would have been altered without occupying the time of the House in doing so. The work, of course, would have occupied the time of the committee.

Lastly, there is the type of Order which I think Senator Baxter had chiefly in mind, the case where a Minister under delegated power is doing something pretty drastic. He may be right or he may be wrong. He may have a case which has satisfied himself or, what is more likely, a case which has satisfied the officials of his Department but which will not satisfy people who are approaching it from an outside or judicial point of view. Now, there is a case in which I think a committee examining it would be entitled to say: "This may be right, but no case has yet been made for it, and the matter should be referred to the House as a whole to see what case the Minister will make for it before we approve of it." I am not going to give instances of specific Orders, but there have been Orders in the Courts within the last few years which were, I think, ill-advised, and, as a lawyer, I would say were unfair. They were attacked on political grounds, and being attacked on political grounds they were defended on political grounds because we know that action and reaction in politics, as in everything else, are equal. If they had been referred to a neutral committee it might have said: "You may be right about this but we are far from satisfied and we think it should be debated in the House." In that way the problem of the justification for the making of the Order might have been approached in a spirit in which people would not be already committed to supporting or opposing a particular side.

In these three cases I think Senator Duffy's proposal would work. I am sure he will agree with me that in the process of carrying out his suggestion in committee difficulties would arise. I think he would be the first person to suggest modifications in the procedure to overcome those difficulties when they did arise. I am convinced that this proposal is a genuine attempt to meet one of the greatest problems of modern Parliamentary government. It was only quite recently that I happened to take up in the Library an article on modern Parliamentary government which pointed out that it was really a misnomer: that it was Parliamentary bureaucracy. I think that the word "bureaucrat" was avoided because it has a slightly coloured connotation in people's minds, but the point made was that it was a mixture of Parliamentary government and Civil Service government. The sooner we face that fact the better and, having faced it, the sooner we try to work it in the best way we can by reinstituting some kind of checks by Parliament, the better it will be. I wholeheartedly support Senator Duffy's motion, and I ask the House to do so also.

Mr. Duffy

I frankly admit that no debate in this House for a long time so completely disappointed me as did the debate we are now concluding. I was completely mystified when I heard Senator Hawkins speaking the official mind of the Government on the matter.

Mr. Hawkins

I was not expressing the official mind of the Government. This House is left to transact its business in its own way. The views I expressed were my own.

Mr. Duffy

Thank God for that. I was afraid they represented a message which the Government had sent to us. I never heard anything so completely lacking in argument, reason and logic as Senator Hawkins' speech. Senator Hawkins told us that no case had been made for the committee and that he was not convinced there was a case for the motion. I endeavoured to quote the views in relation to this matter of a Chief Justice. I quoted Senator Comyn, a member of Senator Hawkins' Party at one time. I referred to the order made by Córas Iompair Éireann under an Act which did not exist. But none of these things convinced Senator Hawkins that there was a case for a committee. What would have convinced him he refrained from telling us. If he had told us the kind of evidence which he wanted, I should have availed of this opportunity to put it before him. Senator Hayes was very naïve. I have been wondering often, when Senator Hayes departs from the usual practice of Parliamentary argument and logic, whether he would like to see the destruction of Parliamentary institutions. I am waiting for him to say that he would not. Senator Hayes spoke as if I were pressing the Oireachtas to extend the powers of Ministers to make regulations. Senator Hayes knows that, while we have not resisted the proposals of Ministers to make regulations, except on rare occasions, we have fought strenuously in this House for a provision in all the Bills authorising the making of regulations requiring those regulations to be tabled and an opportunity of annulment given to the House.

Mr. Hayes

That is what I said.

Mr. Duffy

I wonder if it is. It did not seem like that to me. Senator Baxter followed on the same line—the Party line.

Mr. Hayes

Would Senator Duffy allow me to say that I had not a word with Senator Baxter on this matter nor Senator Baxter with me?

Mr. Duffy

I can well understand it. I referred to the "Party line". There is no need to discuss the Party line amongst members who understand each other so thoroughly as Senator Hayes and Senator Baxter. I should like to put to Senator Hawkins the views of the Taoiseach. I want to recall to his mind a speech delivered in this House by the Taoiseach on the 24th July, 1942, when he said:—

"It is within the power of both Houses to set up a committee, if they wish, and to give them the duty of looking over Orders and of reporting to the House if they think it necessary to do so."

The Senator did not dissent. The importance of the reference is that it followed a statement by Professor Magennis on the Emergency Powers Bill, 1942. This is the relevant portion of the speech made by Professor Magennis:—

"As anyone who studies them knows, we have a large accumulation of Orders which it would be impossible for the ordinary Senator to become acquainted with. It would be well to have some members of a committee with a duty upon them of a keeping a vigilant eye on these Orders and of making a report when necessary. This is a procedure which would be very helpful to the preservation of liberty."

I commend that statement to Senator Hawkins and I remind Senator Baxter and Senator Hayes that a man of the competence of Professor Magennis considered it was not possible for members of this House individually to check up on those Orders and that he thought a committee should be appointed for the purpose. The late Senator Magennis was a man of great competence and industry and, if he was convinced that a committee should be set up for this purpose, I think I am on reasonably safe ground in arguing that the 60 members of this House cannot do the job individually and that if they were to try to do it it would be a waste of energy and effort.

The appointment of the committee does not relieve any member of his obligations. It would still be the duty of members to make themselves acquainted with the rules and regulations and to put down annulment motions if they thought it. However, I do not think that that is the best approach. I consider that the best approach is to have a committee set up and, if any person considered that there was something in a regulation of doubtful validity, he could approach the members of the committee who would consult about it. I cannot understand the confusion in the mind of Senator Baxter about members of the committee pulling this way and that. The analogy I draw is with the Public Accounts Committee in the Dáil. The members of that committee are appointed on the basis of proportional representation and the chairman must not be a member of the Government Party. Civil servants are called before the committee and examined. The evidence is published and the report of the committee is published. It is signed by the chairman and I think that there is no record of any occasion on which the committee differed as to the facts proven before it. Why should they? Surely, there are ten competent persons in this House sufficiently honest to sit down and say that certain things have been proven before them, if they believe them to have been proven, and that they should be brought before the House. The final decision rests with the House. There has been criticism of this resolution on the ground of lack of precision. I endeavoured to get a copy of the resolution proposed in the British House of Commons. It is even less detailed than the proposal before the House. The motion moved in the House of Commons on the 17th May, 1944, was in the following terms:—

"That this House would welcome the setting up of a Select Committee with power to send for persons, papers and records, whose duty it would be to carry on a continuous examination of all statutory rules, orders and other instruments of delegated legislation and to report from week to week whether, in the opinion of the committee, any such instrument is obscure or contains matter of controversy or should for any reason be brought to the special attention of the House."

That motion was brought before the British House of Commons and led to a very protracted debate. At the end of the debate, it was withdrawn on the assurance of the British Home Secretary of the day that the Government would introduce a motion in more detailed terms, setting out the functions and obligations of the committee. The Government came to the House of Commons with a detailed motion. Senator Hayes quoted part of it. It is contained, as I have said already, in the third special report from the Select Committee on Statutory Rules and Orders, dated 29th October, 1946. That committee was appointed, as I have said, in accordance with the proposal submitted to the House of Commons on behalf of the Government. Its function is—

"to consider every statutory rule or order (including any provisional rule made under Section 2 of the Rules Publication Act, 1893) laid, or laid in draft, before the House, being a rule or draft upon which proceedings may be taken in either House in pursuance of any Act of Parliament, with a view to determining whether the special attention of the House should be drawn to it on any of the following grounds."

It then sets out the grounds on which the attention of the House may be directed to any particular instrument. The committee reports if attention should be so directed.

I commenced my speech this evening by stating that if the resolution, in its specific terms, was unsatisfactory to the House, I should be willing to withdraw it if we could agree upon a more satisfactory form of words. But that is not the objection taken by Senator Hawkins, Senator Baxter, or Senator Hayes. Their objection is that the procedure is unworkable. Senator Hawkins is not convinced that we need it at all. He thinks that everything is beautiful and that it would be a mistake to ask any body of men to perform any function for this House. Senator Baxter thinks much along the same lines.

Mr. Baxter

He does not.

Mr. Duffy

Senator Baxter told the House that we must ask for volunteers for this committee and he assumed that there would be no volunteers. I wonder for what members of this House have been elected? For what do they want to come in here and draw their expenses allowance? Are they here as workers or as pensioners of the State?

Mr. Hayes

As "good lookers-on", like Essex's Dragoons.

Mr. Duffy

This House has to justify itself before democracy. There is no case for this House if it is merely to meet a certain number of times in the year and pass Bills as they are presented by Ministers in the same way as the Immature Spirits Bill was passed this evening when the Minister for Finance told us that the Parliamentary Draftsman had prepared it, that he presented it and that we had to take it. In his Opposition days, the Taoiseach considered that the Seanad should be abolished. I wonder what justification there is for a Seanad that refuses to do any work. Does this House take its responsibilities seriously and is it prepared to perform the functions it is capable of performing and ought to pering? I may remind some members of the House that a motion similar to this was debated on a previous occasion and that a vote was taken upon it. I shall be interested to see how members of the House who voted in 1929 will vote on this motion because I propose to press it to a division.

Mr. Hayes

As the question has arisen, may I be allowed to say that Senator Baxter's point was that the only people who would be of any use on this committee were people who were already busy about the business of the House. Those who do no work for the House would be of no use on this committee.

Question put.

The Seanad divided: Tá, 13; Níl, 22.

Tá

• Duffy, Luke J.
• Horan, Edmund.
• Johnston, Joseph.
• Keane, Sir John.
• Kyle, Sam.
• Madden, David J.
• Moore, T. C. Kingsmill.
• O'Dea, Louis E.
• O'Reilly, Patrick John.
• Ruane, Seán T.
• Ryan, Michael J.
• Smyth, Michael.
• Tunney, James.

Níl

• Baxter, Patrick F.
• Clarkin, Andrew S.
• Concannon, Helena.
• Counihan, John J.
• Crowley, Tadhg.
• Farnan, Robert P.
• Hawkins, Frederick.
• Hayes, Michael.
• Hearne, Michael.
• Hogan, Daniel.
• Honan, Thomas V.
• Kehoe, Patrick.
• Longford, Earl of.
• Lynch, Peter T.
• McCabe, Dominick.
• McEllin, John E.
• O Buachalla, Liam.
• O'Donovan, Seán.
• O Siochfhradha, Pádraig.
• Nic Phiarais, Maighréad M.
• Stafford, Matthew.
• Sweetman, Gerard.

Tellers:—Tá: Senators Kyle and Smyth; Níl: Senators Hawkins and S. O'Donovan.

Question declared negatived.

Business suspended at 6 p.m. and resumed at 7 p.m.