Seanad Éireann debate -
Wednesday, 3 Dec 1947

Vol. 34 No. 15

Statutory Instruments Bill, 1947—Second Stage.

Question proposed: That the Bill be now read a Second Time.

Minister for Justice (Mr. Boland)

This Bill makes provision for the printing and publication of statutory instruments, these being instruments more commonly referred to as Statutory Rules and Orders. The Bill will replace the Rules Publication Act, 1893, which is being repealed in its entirety. Successive law officers have advised that the Act of 1893, although technically continued in force by the Constitution, was not fully adapted for application in this State and that it has, therefore, never been in really effective operation here. The Supreme Court in 1941 endorsed this view to a large extent when it held that the Act did not apply to Statutory Rules and Orders made by the Government. While efforts have been made to secure adherence to the procedure laid down in the Act of 1893, the results have not been satisfactory or uniform. Some statutory Orders have been published outside the official numbered series, and, on the other hand, instruments of relatively minor importance have been included.

The purpose of the present Bill is to remedy the existing unsatisfactory state of things. The Bill proposes to establish a simple, uniform and reasonably flexible procedure to secure that, when statutory instruments are made, notice to that effect will be published in Iris Oifigiúil and the instruments themselves printed and published in the official numbered series and made readily available to the public.

Having regard to the volume and variety of statutory instruments, it is not proposed to insist on the publication of all such instruments in the official series. Provision is accordingly made in the Bill empowering the Attorney-General to exempt from inclusion in the official numbered series those statutory instruments which, because of their merely local or personal application, temporary operation or limited effect, or for any other sufficient reason, should not be published in the official series. The Attorney-General is further empowered to exempt not merely individual instruments but classes of instruments, the object being to avoid multiplicity of references by rule-making authorities to the Attorney-General.

Exemption from the printing and publishing arrangements provided for in Section 3 (1) of the Bill does not mean that the exempted instruments will not receive adequate publicity. The manner and form of such publicity may be left to the rule-making authority concerned. Section 3 (5) recognises this by providing that—

"nothing in this section shall be construed as restricting the printing and publication of any statutory instrument which is not a statutory instrument to which this Act primarily applies."

Mr. Sweetman

What does that mean?

Mr. Boland

I suppose we will deal with that when we are concluding.

Section 2 (2) of the Bill provides that the decision of the Attorney-General will be final in determining whether the Bill when enacted applied to a particular statutory instrument. This provision as at present drafted was the subject of some criticism in the Dáil on the ground that it was unconstitutional to vest such a power in the Attorney-General. The Senate will have an opportunity of considering the point in more detail on Committee Stage and, in the meantime, I propose to have the point further examined.

In view of the possibility that some statutory instruments to which the Bill will apply may inadvertently be omitted from publication in the prescribed series or may be so published but without an official number, provision is made in Sections 3 (2) and 4 (2) that the validity of any such instrument will not be affected by such an omission.

Provision is made in Section 3 (3) of the Bill to ensure that contravention of a statutory instrument will not be punishable as a criminal offence unless adequate publicity has been given to the instrument when made, and a defendant charged with contravening a statutory instrument must be acquitted unless it is shown that reasonable steps were taken before the date of the alleged offence to bring the purport of the instrument either to the notice of the public as a whole or to the notice of persons likely to be affected.

Mr. Duffy

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.

Mr. Douglas

It seems to me that this Bill raises a very much wider issue than appears on the surface. It raises a question of extreme importance, the extent to which it is possible to maintain any kind of effective democratic control over the increasingly large amount of legislation made by Order, and not directly subject to discussion and control by Parliament. The problem is not peculiar to this country. It is one of the most urgent problems of democracy as a whole. I should like to see a commission or a committee set up which would have on it one or two experienced judges, a few members of each House with considerable legislative experience, and a few senior civil servants, who would make recommendations, as to the best way in which Parliamentary control might be maintained and, at the same time, recommend what was essential from the point of view of justice and fair play to individuals who might be affected by such legislation. It is not a simple matter.

As far as this Bill is concerned, when I read it, it immediately struck me that we were giving far too drastic powers to the Attorney-General. I recognise that the Attorney-General's office may be the best place from which suggestions should come, as to the kind of statutory instruments which are law— although not passed through Parliament in the ordinary way—but need not be printed. It seems to me that it is not sufficient to leave the question there. I believe that in the other House the question whether this was within the provisions of the Constitution was raised. That is a legal point upon which I will not express an opinion. I understand the Minister expects to make a statement on the Committee Stage which I will be interested to hear. Whether it is constitutional or not, I do not think it to be a desirable practice.

There should be a provision in the Bill, where the Attorney-General makes an Order exempting from printing any specific type of Order or statutory instrument, that notice should be sent to every member of each House to the effect that he has done so. That is the kind of Order to which the attention of members of the Parliament should be drawn, so that they could go to the Library to see it, and find out whether it was of importance, of purely local interest or of minor interest. I suggest that if the Attorney-General is to have these powers they should be subject to ratification by Parliament, that Orders which are not going to be printed should be placed in the Library and notice sent out, mentioning the names of the Orders which the Attorney-General decided need not be printed.

The effect would be to draw the attention of members to the matter so that it could be raised if necessary. I expect that it would rarely occur where it was felt that the Order was one of relative unimportance, in which no one would be interested except a Department and a few other persons. It is recognised that some such Bill as this is necessary because of contrary decisions in the courts. I should like to see the Minister accepting an amendment limiting the duration of this Bill to one year, with a view to bringing it in after the election for discussion, when more time could be given to it. It is a measure of very considerable importance and of great interest to those interested in the principle of legislation generally.

Mr. O'Dea

This Bill requires a good deal of consideration, which I daresay it will get on the Committee Stage. There are some difficulties to which I wish to draw attention. On the position of the Attorney-General, I say that that would be all right provided his decision would be given within a certain period of making an Order. It would not do to suggest, if prosecutions were brought, that the Attorney-General had given his decision that it was not necessary to print a particular Order, to have that Order made evidence in a court of law, in which he would be the prosecutor. If a decision were given in good time it would be a good idea. We have too much printing of documents. It would be well to dispense with printing where they are merely of a temporary nature or refer to a particular locality. The Bill states that primarily it applies to every statutory instrument which is made on or after the 1st day of January, 1948. It refers to different Acts and states:—

"The Rules Publication Act, 1893, is hereby repealed."

I cannot see what provision is made for Orders that applied when the Act of 1893 was in force, which is now to be repealed from the 1st of January next. Section 3 (1) (a) reads:-

"(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,

(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.

(2) 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.

(3) 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."

Why should it lie with the defendant to prove that it was not published in Iris Oifigiúil?

Is it not for the prosecution to prove that it was printed? Is it not a fact that a statutory instrument cannot be used in evidence in court unless it is proved that it was published? Here the defendant is asked to prove that it has not been published. He would have to go through all copies of Iris Oifigiúil for years and be able to state that he had examined them and could not find the Order. That seems to me to be wrong and to be changing the rules of evidence. The law should be that it was the duty of the prosecutor to prove that the statutory instrument had full force and effect as soon as published in Iris Oifigiúil and that copies were laid before both Houses of the Oireachtas.

Very often a provision is made that an Order is laid on the Tables of both Houses for 21 days, during which it may be annulled. Is it not after the expiration of the 21 days that publication should appear in Iris Oifigiúil? That would be evidence in itself that the Order had been laid before both Houses, and not been annulled, and had been published in Iris Oifigiúil. I should like the Minister to consider these points before the next stage, and to see if it will not be necessary, under this Bill, to provide for Orders made under old statutes subject to the Act of 1893, which is being repealed.

Sir John Keane

I wish strongly to support Senator Duffy in emphasising the importance of this whole question. It has become a matter of very great importance in the Parliament across the water. After all, I think we have a right to follow them in matters that are considered of importance in an old and long-established Parliament, which has served as a model for most of our Standing Orders and Parliamentary procedure. What is this question we are dealing with? We are dealing with law-making on an increasing degree in a form that is subject to little or no control by the Legislature. That is very important. I hold that an Order made in this way is, in effect, an Act of Parliament. Who determines as to how it comes into being and the very important character it possesses? Let me give an instance of what in practice happens. I am not concerned so much with the background of law as affecting this whole question. I am concerned in the way it appears to the ordinary plain man and, in addition, to the experienced lawyer.

We give power to a Minister to make a number of regulations, sometimes within a prescribed policy and sometimes within no policy. Only last week, we gave a Minister power to make regulations on a matter which he regarded as insignificant, but which others regard as of great importance, with no indication of policy whatever. What control would either House have over regulations which that Minister proposed to make? I know that this House has the power of annulment. What have individual Senators got in their possession when they wish to exercise that power? They have nothing in many cases but a single copy of the Order in typescript which can be feretted out in the Library.

The only notice they have of that Order is an entry on the Order Paper which they get before the sitting of the House. I have been watching with some interest the sequence of events connected with an Order, and I ask the Minister to tell us if there is any connection in time between the making of the Order and its tabling in the House, because, until the Order is tabled, nothing is known about it. I understand from Senator Duffy, who has gone into this in more detail than I have, that there is no obligation to lay an Order within a prescribed time. When an Order is laid, there is notification to a select few, members of both Houses—and they are the only people who know—who are energetic enough, and, I might say, suspicious enough and knowledgeable enough to read between the lines of the very bald statement on the agenda and frequently these statements on the agenda make no reference even to the statute under which the Order is made. On to-day's Order Paper, there is reference to the Tillage Order, 1947, with no indication of the enactment, the Wild Birds (County Kerry) Order, Onions (Regulation) Order, and so on. In many cases, the information given on the Order Paper is very scanty—I suppose there are practical difficulties in the way of putting too much there—but you get after a time, an unstated period, an Order which you can if you choose to go to the Library, but surely the important point for us is when we get the print of the Order.

If I want to annul an Order and I have nothing but the one copy of that Order in the Library, it is absurd to ask me to raise a debate on the subject on the basis of one copy which no member can see unless he goes to the Library. It may be said that it is only a short period before the printed copy is circulated to every member. A short time—I ask you! I have here an Order dated January, laid on the Table, I do not know when, but received by me on August 14th, eight months after the Order was made. The House has sat for 21 sitting days after its tabling and it would be futile to tell me that it is practical politics to seek to annul that Order. By the time I knew of it, unless I chose to see it in the Library, 21 sitting days would have elapsed and the House would have lost all power to annul that Order which may or may not be important, but which is an Order, an instrument, which is an Act of Parliament. It has been made by Ministerial direction.

This subject is one of great and growing importance. Here we are looking at it rather through the eyes of the Act of 1893, but a lot of water has flowed along the river since 1893. In 1893, there was a tiny trickle of legislation in this form; now it has assumed the proportions of a flood, and it is most important that the question should be looked at systematically in the light of present conditions and that the Houses of the Oireachtas, in their own interests, should put their heads together to see that they have effective control over these instruments, and indeed not only over these instruments but over the promptitude of the publication of Orders and of Bills as well.

Lately, a question arose in a certain institution in which I am interested of getting Bills examined by lawyers with a view to having early information of measures that may affect the institution concerned. We were told that they can only be adequately examined by members of either House. Why? Because it is not possible to get from the Stationery Office copies of Bills within a reasonable time after their printing, and the same applies to Orders. We are told that in some cases Orders are available in the Stationery Office in "roneoed" form, but they are soon sold out if they deal with important subjects and citizens cannot get them. We know how the Chief Justice and officers of the courts were unable to get a particular Order and this whole question is put aside as a matter of minor importance. It is a matter of very great fundamental importance, dealing with the rights of and the control by a democratic Parliament of its own laws and I hope that on the Committee Stage these various questions will be examined much more closely than they have been examined in the other House with a view to trying to get some clarity into the whole question.

With regard to the phrases used in these Orders, it would take a person sitting in a judicial capacity on the Bench to interpret such a phrase as "as soon as may be", and I hope that Senator O'Dea will help us as to how a phrase of that kind would present itself to a district justice or a judge. The whole thing has become thoroughly loose and thoroughly dangerous. It is the beginning of the supercession of Parliament by the bureaucratic authority. What better authority on this point have we than Lord Hewart, who was Lord Chief Justice in England and who wrote a book on the whole subject of the dangers of a delegated legislation which he called "The New Democracy." There is also a most elaborate and voluminous publication of the Parliamentary body which inquired into this question in England. Incidentally, there is also the ambiguity of language which one finds in this whole procedure.

You have a number of expressions used indiscriminately. You have the words "regulation" and "rule" without any distinction of meaning. You have the term "article" also used indiscriminately and all this confusion tends to increase the power of the Ministers and their advisers and weaken the power of Parliamentary control. I do hope that this matter will be gone into seriously by the House on the Committee Stage and that the whole question will be examined in closer detail. There was raised in the Dáil the question of the constitutional power of the Attorney-General to circulate Orders. I wonder what the Minister's view on that is.

Mr. Boland

I said that this point is being examined.

Sir John Keane

Oh, I see you are not yet in the position to answer the point. I think there are very grave dangers in giving power to the Attorney-General in that matter. There may be a small number of people affected but it may be just as important for the few as for the many. As a matter of fact the few are often much more important than the many when it comes to a matter of reality. I do not understand this question of the serial number. Why cannot all Orders follow in sequence and why cannot the Orders not published be marked with an asterisk so that if there is a gap between Orders 150 and 153 we will know that these others were Orders that were made but were not published. It is far simpler, I think, to indicate the Orders that are not published by numbering all the Orders in sequence and putting an asterisk on the ones not published. I think I have said enough to impress on the House the great importance of delegating legislation. It is very essential and long overdue to have some machinery for providing that we get those Orders as soon as they are published so that we can examine them. While not asking the House to reject the Bill I certainly do ask the House to examine this Bill on the Committee Stage with scrupulous care.

Mr. Boland

This Bill was introduced because the existing state of affairs is unsatisfactory. As Senators are aware, it provides for the publication in serial order of all the various rules and regulations. The points raised by Senator Sir John Keane and Senator Duffy should be taken up in connection with the Bills that give power to make these Orders. This is a Bill to regulate the Orders which have been made, and the question of delegating legislation does not arise here at all. With a view to remedying some, at least, of the unsatisfactory conditions referred to in the introductory note to the register of administrative law and so as to have Statutory Rules and Orders readily accessible, a number of sets of all Statutory Rules and Orders made in the years 1922 to 1938 were collected and bound in 23 volumes by the Stationery Office, and sets have been deposited in various libraries, including the Oireachtas Library, the National Library, the Law Library of the Four Courts, etc. A comprehensive index to these volumes was also prepared and placed on sale. Separate copies of Orders and Rules listed in this index are available for purchase from the Stationery Office. Sets of Statutory Rules and Orders made in the period 1939 to 1945 have also been assembled in volumes and these are at present being bound. An index to these Statutory Rules and Orders (made in the period 1939 to 1945) has been prepared and is at present with the printers. When printed it will be put on sale.

It is also the intention to publish and place on sale volumes of Statutory Rules and Orders made in 1946 and subsequent years. As from 1948 the volumes of statutory instruments will be published annually. As, I say, this whole question is not one for discussion on this particular Bill. It should be taken up on any Bill which empowers the Minister or officials to make Orders. There are certain Orders which must be approved of by both Houses, others must simply be laid on the Table of both Houses and may be annulled within 21 days. I do not know what particular steps are taken to bring these Orders to the notice of the Oireachtas. Whether they are sent to the members or not, I am not sure, but they are certainly placed in the Library and it should be possible for any member of the Oireachtas to get copies of them before the 21 days have expired. I think that should be possible. Now coming down to the Act of 1893, we had this question raised in the form of an amendment in the other House and I pointed out that in this country the Act was never observed. In England, Section 1, which provides for 40 days' notice to enable authorities affected to make representations was side-stepped, I am told, by resorting to Section 2, which gives the right to make provisional Orders which have immediate effect. That is probably what was responsible for this other Act quoted by Senator Duffy, the 1946 Act. In this country it has to be put on the Table of the House before it takes effect. The point about the Attorney-General having the right to determine what Orders should be printed was raised in the other House and it was suggested that it would be unconstitutional to give him such power. If that is so, we will remedy the position. I intend to deal with that matter on the Committee Stage. Senator Douglas wanted the Bill limited to one year.

Mr. Douglas

I only suggested that if there was not adequate time to go through all the details.

Mr. Boland

Well, this Bill came along in the ordinary course and I was hoping to start off the New Year with it and have it taking effect on January the 1st, if we could. I see no objection to limiting it if it is necessary but I do not think it is necessary. Senator O'Dea seemed to think that the onus of proof is on the defendant but what is stated there is that if he can show that an Order was not published, he must be acquitted, the charge must be dismissed. If the Senator looks at Section 3 (3) he will see that if 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 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. I think that puts the onus on the prosecution, surely, and the defendant may adopt the line of defence that that was not done. If it was not, then it is not that the penalty may be mitigated but the charge must be dismissed. That was never in these Acts before. It is a distinct improvement on the existing provision.

Mr. O'Dea

The first point I object to is that the defendant must prove it has not been published. The defendant should never be asked to prove that an Order or regulation had not been published. It is for the prosecution to prove that it had been published before it becomes effective.

Mr. Boland

He is not asked to do it.

Mr. O'Dea

The prosecution must prove that. Why do you ask the defendant to prove that? Before a case is made against him he will have to get into a box, in fact, and prove that he has made a search and that there is no such publication in Iris Oifigiúil of that regulation. That seems an absurdity. Why should the defendant have to go into the box to prove anything unless a case is made against him? It cannot be made against him under an Order unless it is proved by the prosecution that that Order is effective.

An Leas-Chathaoirleach

This appears to be a second speech, Senator.

Mr. Boland

This is merely a line of defence open to him. The onus is on the prosecution, as I read out, but the defendant can make the point that that was not published and, if he can show that it was not published, it is a line of defence left open to him. He is not required to do it but the prosecutor is required to show that reasonable steps were taken to bring the existence of this Order to the notice of persons likely to be affected. That is the onus on him but the defendant has that line of defence open to him. That may be a Committee point.

Mr. O'Dea

It needs a lot of amendment.

Mr. Boland

Perhaps it does. I do not think so. I think it is an improvement on the existing state of affairs, where there was no such direction as there is in this that a charge must be dismissed.

Mr. Sweetman

Would that be difficult—that it is an improvement?

Mr. Boland

In regard to Senator O'Dea's point about the printing of the old Orders, we are doing what we can about having them put into a number of volumes. That has been done and the others from 1939 to 1946 are being printed with an index and we hope to have them annually printed. In modern times, when the State has to interfere so often in matters that it had not to do, say, 50 years ago, it would be simply impossible for any Government to carry on unless they had some such power, with, of course, the checks that are there. Some of these Orders are of very local and personal application.

There are such things as Civil Service examinations that only affect a very limited number of people. Others only affect certain districts, and so on. I think it will be found that modern Parliaments could not carry on if such powers were not there. There is some way of checking them. Certain Orders can be annulled. Others cannot be annulled. There is, for instance, the Rule-Making Committee in the courts. They make rules and they do not come here at all and we have no power to upset them. I think modern society could not carry on unless such powers were there. About 200 years ago all the Government had to do was to keep order. Everyone looked after himself so far as business was concerned. Now the Government are being called on every day to interfere and regulate and, without such powers as these, I do not see how it could be done. The whole question that was dealt with at length by Senator Duffy and Senator Sir John Keane is one that should be dealt with in relation to the Acts which give the power. This is merely arranging for publication and to make for the convenience of the public.

Question put and agreed to.

Committee Stage ordered for next sitting day.