I suggest that this is a Bill to which this House should give very careful consideration. It is a Bill to regulate the manner in which Orders made by Ministers, made by the Government, made by civil servants, become effective as if they were Acts of the Oireachtas. The position in the past has been very unsatisfactory. Orders and regulations have been made which have the effect of a statute without adequate steps being taken to bring their effect to the public notice. I believe it was argued in court in one case that there was no obligation to produce to the court an Order under which the State was prosecuting. The question to which the Minister adverted in his speech as to the application of the Rules Publication Act was raised in the Supreme Court on two occasions, of which I have some recollection. I referred to these two instances when I asked this House to appoint a committee, some time last year, for the purpose of examining Orders tabled in this House. You will remember that in one case a judge of the Supreme Court said emphatically that the Rules Publication Act, 1893, was in full force and effect in this State. Another judge of the Supreme Court, at a later date, said exactly what the Minister has just said now, that the Rules Publication Act was never adequately or effectively adapted in this State. It is a very unsatisfactory condition of affairs when two judges of equal status hold conflicting views in relation to an Act such as the Rules Publication Act, 1893.
I would like to draw attention to what the Rules Publication Act requires. Sub-section (1) of Section 1 provides as follows:-
"At least 40 days before making any statutory rules to which this section applies, notice of the proposal to make the rules, and of the place where copies of the draft rules may be obtained, shall be published in the London Gazette.”
That was the position and is still the position in Great Britain in respect of the making of rules or regulations to which the Rules Publication Act applies. The Rules Publication Act did not apply to all instruments made under authority of statute. Sub-section (4) of Section 1 of the Act of 1893 says:—
"The statutory rules to which this section applies are those made in pursuance of any Act of Parliament which directs the statutory rules to be laid before Parliament but do not include any statutory rules if the same or a draft thereof are required to be laid before Parliament for any period before the rules come into operation nor do they include rules made by the Local Government Board for England or Ireland, the Board of Trade or the revenue departments or by or for the purposes of the Post Office nor rules made by the Board of Agriculture under the Contagious Diseases (Animals) Act, 1878 and the Acts amending the same."
With the exception of these reservations, the Act of 1893, so far as Great Britain was concerned, applies to all instruments made under authority of statute and the main effect of the application of the Act to any particular rule or regulation was that the rule or regulation concerned would be tabled 40 days before it became operative. It has been argued that it would be impracticable to apply that regulation here—in other words, it would be impracticable in the generality of cases to have rules and regulations made under statute tabled for a period of 40 days. That may be true but certainly this House has an obligation placed upon it to ensure that some equivalent provision shall be inserted in our legislation to ensure that the public who are affected by these rules and regulations will know of their existence and will have an opportunity of making themselves acquainted with rules and regulations which affect their daily lives.
I want now to draw attention to what is substituted in this Bill for the Act of 1893.
The operative section for the purpose of the point I am now making is Section 3, which provides:-
(1) The following provisions shall apply in respect of every statutory instrument to which this Act primarily applies—
and the provisions enumerated are three in number. The first provision is:-
(a) as soon as may be after it is made, it shall, notwithstanding that it is liable to be annulled, be printed under the superintendence of the Stationery Office.
What is meant by "as soon as may be" I do not know, but it seems to me a very loose term and that it is designedly left loose so that there may be a good deal of elbow room in carrying into effect the provisions of Section 3 of this Bill. The sub-section goes on:-
(b) as soon as may be after it has been printed, notice of the making thereof and of the place where copies thereof may be obtained shall be published in the Iris Oifigiúil,
(c) as on and from the date of the issue of the Iris Oifigiúil containing the said notice, copies of the said statutory instrument shall be kept at the place specified in the said notice and may be obtained there.
That section seems to contemplate that, as soon as may be after an Order or regulation is made, it shall be printed, somebody in the Government offices determining for himself what is meant by the phrase "as soon as may be"; and then, as soon as may be after it has been printed, a notice to the effect that it has been printed will be published and that notice will set out the place where copies of the Order may be obtained.
Then we have this gem, in sub-section (2) of Section 3:-
Subject to sub-section (3) of this section the validity or effect or the coming into operation of any statutory instrument to which this Act primarily applies shall not be affected by any non-compliance with sub-section (1) of this section.
Therefore, if, as soon as may be after it is made, the Order is not printed, or, having been printed, as soon as may be afterwards notice of its making is not published in the official gazette, and if copies cannot be obtained, that does not matter, as under this sub-section the instrument is still valid, subject to the provisions of sub-section (3) of this section—the sub-section to which the Minister referred a moment ago—which offers a defence to a person who is prosecuted for a contravention of an Order or regulation which has not been printed. It says:—
Where—
(a) a person (in this sub-section referred to as the defendant) is charged with the offence of contravening (whether by act or omission) a provision in a statutory instrument to which this Act primarily applies, and
(b) the defendant proves that, at the date of the alleged contravention, notice of the making of the said statutory instrument had not been published in the Iris Oifigiúil,
the charge shall be dismissed; unless the prosecutor satisfies the court that at the said date reasonable steps had been taken for the purpose of bringing the purport of the said instrument to the notice of the public or of persons likely to be affected by it or of the defendant.
At best, it can be said that this is a halfhearted measure for the purpose of pretending that Government Departments and other authorities—it applies to more than Government Departments —are in fact complying with traditional practice, whereas in fact there are wide loopholes enabling them to avoid that practice. We are dealing with something which affects the lives of every citizen just as intimately as would any statute debated in both Houses and subject to amendment by both Houses and which gets wide publicity in the process of enactment. We are dealing with instruments, Orders and regulations made in Government offices, not always by a Minister. Certain instruments may, under statute, be made by specified civil servants.
I think it will be found that, in the case of the Supplies and Services Bill, which will probably come before us in a week or two, provision is made—certainly, provision was made in the Emergency Powers Act—enabling specified officers down to the rank of assistant secretary to make Orders having the effect of law, Orders under which State officers could institute proceedings, Orders which enable and authorise and, in fact, coerce the courts of justice to send men to prison. These Orders are made without any publicity whatever. Under this Bill, publicity may or may not be assured.
I remember on one occasion an Order affecting the unemployment benefits of thousands of people, made by the Minister for Industry and Commerce, having actually expired before a copy was tabled in either House of the Oireachtas. There was power to annul the Order had it been tabled, but the opportunity for its annulment had elapsed before it was tabled, as the Order had ceased to be operative, a period of eight or nine months having elapsed before it was tabled.
There is another loophole here, in sub-sections (2), (3) and (4) of Section 2. It commences:-
Where—
(a) it is proposed——
that is, proposed by a Minister or a State Department or by any other authority entitled to make rules to which this Act applies——
——to make a particular statutory instrument, and
(b) a question arises whether that statutory instrument, if made, will or will not be, by virtue of sub-section (1) of this section, a statutory instrument to which this Act primarily applies,
the question may be referred to the Attorney-General for his decision and the decision of the Attorney-General thereon shall be final.
I am not prepared to accept the view expressed by the Minister that there is a certain kind of Order of some local application or that it may be an Order made by the Defence Forces which should not be published. The type of Orders which should not be published should be specifically set out in the Bill, so that this House may be conversant with the provisions relating to such Orders. Above all, the Attorney-General is not a Minister and although he holds an independent position under the Constitution he is appointed at the will and pleasure of the Government, and I consider it to be most improper that he should be the sole person to decide whether an Order should be made public or not.
In Great Britain, a question arises at some time or other in relation to the publication of Statutory Rules and Orders. That is more particularly true where the Order does not have effect until publication has been assured. In Great Britain, where a short cut is taken in these matters, the Department concerned is obliged by statute to report the fact to the Chairman of each House of Parliament that the Order has been published. The law on the matter in Britain now is set out in an Act of 1946, chapter 36 of that year, an Act which became law on the 26th of March, 1946. I draw attention to Section 4 (1) which, although it is pretty long, I would like to quote :
"4.—(1) Where by this Act or any Act passed after the commencement of this Act any statutory instrument is required to be laid before Parliament after being made, a copy of the instrument shall be laid before each House of Parliament and, subject as hereinafter provided, shall be so laid before the instrument comes into operation:
Provided that if it is essential that any such instrument should come into operation before copies thereof can be so laid as aforesaid, the instrument may be made so as to come into operation before it has been so laid; and where any statutory instrument comes into operation before it is laid before Parliament, notification shall forthwith be sent to the Lord Chancellor and to the Speaker of the House of Commons drawing attention to the fact that copies of the instrument have yet to be laid before Parliament and explaining why such copies were not so laid before the instrument came into operation."
I want to emphasise the great care which the British Parliament takes of the right of the public to know what is being done and the great care it takes to assert the supremacy of Parliament in making rules and regulations to govern the lives of the citizens.
The ordinary practice in Britain is that no rule, order or regulation made under statute shall ordinarily have effect or come into force unless and until it is laid before both Houses of Parliament.
If for some reason or other it is found necessary to have an order or regulation brought into force before it can conveniently be laid before Parliament —for instance, Parliament may not be sitting and it may be necessary to do something while Parliament is in recess —and in such circumstances Parliament specifically provides that the order may come into force before it is presented to Parliament. In such a case notification must be given to the Lord Chancellor, in the case of the House of Lords, and to the Speaker in the case of the House of Commons, stating the reasons why the order was put in force before it was laid before Parliament.
This Bill is concerned not merely with the numbering of statutory rules and Orders. It is not concerned merely with the gathering together and the publication of these rules and Orders in an approved form, but is concerned primarily with ensuring that both Houses of the Oireachtas will be made aware of what is being done under the authority conferred by the statutes which we enact, and with the manner in which these statutes are implemented by the Orders made by Ministers, Government Departments, and public authorities. The numbering, the gathering together, and the publication of these instruments is only incidental to the main purpose of the Bill, which, as I have said, is the measure by which we ensure that both Houses of the Oireachtas will have control over delegated legislation. That control will be ineffective if we permit the Bill to go through in its present form, particularly having regard to the provision in sub-section (2) of Section 3 which specifically provides that, notwithstanding the fact that the law is complied with the Order remains in force. There is no time table prescribed in relation to publication.
As I have pointed out, the normal practice in Great Britain is that the order and the regulation must be tabled in both Houses before becoming effective. In this case, it becomes effective automatically once it is made, and then it will be printed "as soon as may be" and, on being printed, notification of its existence will be published in the gazette "as soon as may be". "As soon as may be" means 12 months, six months or three months, and during all that time this law is in force this regulation is effective, and this House has no authority over it, even where the power of annulment has been guaranteed by the statute.
The appeal that I make to the House is that we ought to be jealous of the power conferred by the Constitution on both Houses of the Oireachtas, the power to make laws for the good government of this country, and the power to make laws in the interests of the masses of the people. It is merely incidental that these laws prescribe punishment and penalties in respect of individuals. The main purpose of all our law is to ensure the happiness and well-being of the people as a whole, and to protect them in their lives and property. At the same time, in order to give that protection which is guaranteed by the Constitution it becomes necessary to prescribe penalties for those who neglect their obligations to the community and those who commit offences forbidden by the Oireachtas. In applying these penalties we should be scrupulously careful to ensure that they are applied in a manner which has the approval of both Houses, and in no other manner. We can secure that our desires are complied with only in so far as we keep a close check on the making of rules and regulations by public authorities.
There is one minor point to which I would like to refer before I conclude. Senators will remember that, in a debate last year, the question arose as to whether a regulation made under statute, if it were to be annulled, must be annulled in its entirety, or whether it would be permissible to annul a portion of the regulation. Senators will observe that in all the Statutes that have been enacted here there is a common formula in relation to the annulment of rules and regulations which runs something like this: "rules made under this statute shall be laid before both Houses of the Oireachtas and may be annulled by either House within 21 days after the Order is so laid." About a year ago I made the point that, while a regulation might be acceptable to this House in all its aspects, except on one minor point, there is no alternative except to annul the whole regulation if we dislike any part of it. It was argued against me by some members of the House that it is permissible to put down a motion for the annulment of a paragraph or a section of a regulation so made. I doubt if that is so. It has never been tried, and I cannot say what the ruling of the Chair would be if it was tried. But here is an opportunity for the Minister to remove all doubt in the matter by inserting a sub-section in this Bill providing that a regulation capable of annulment, which is laid before both Houses, may be annulled in whole or in part. I would urge on the Minister before this Bill leaves the House to have the matter examined for the purpose of considering whether it is not desirable that a provision of the kind I have mentioned should not be accepted.