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Seanad Éireann debate -
Thursday, 11 Dec 1947

Vol. 34 No. 17

Statutory Instruments Bill, 1947—Committee (Resumed); and Final Stages.

Debate resumed on the following amendment:—
9. In sub-section (3), paragraph (b), page 4, line 6, to delete the words "the defendant proves that" and insert instead the words "whenever the prosecution shall fail to prove".

We were debating this amendment yesterday evening. Since then I have had an opportunity of considering the matter. We have circulated an amendment that I propose to introduce on Report Stage which, I think, meets the point that was made by Senator O'Dea and other Senators. It is putting the onus of proof definitely on the prosecution. It is to delete paragraph (b)—that is where we gave that defence to the defendant, to prove that it had not been printed in Iris Oifigiúil. We are substituting therefor—

"the prosecutor does not prove that, at the date of the alleged contravention, notice of the making of the said statutory instrument had been published in the Iris Oifigiúil.

It is the prosecutor that is required to prove that, instead of the defendant. Of course, we are retaining the other part in the Bill.

That is, the reasonable steps?

Yes. I think that meets the point.

Amendment, by leave, withdrawn.

I move amendment No. 10:—

In sub-section (3), page 4, to delete all words after the word "dismissed" in line 10 to the end of the sub-section.

I think this amendment is unnecessary in view of the statement which has been made by the Minister. If the House will agree, I will withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 11 is not in proper from now owing to the change made by an amendment to Section 2 yesterday.

Probably the other amendment will meet it.

I think it will.

Amendment No. 11 not moved.
Section 3 put and agreed to.
SECTION 4.

I move amendment No. 12:—

To delete sub-section (2).

This amendment is somewhat analogous to the matter we discussed yesterday. Sub-section (2) of Section 3 has reference to the numbering of statutory Orders and instruments which would be printed under the authority of this Bill. It will be observed that Section 4 provides that the Stationery Office shall assign to each statutory instrument to which the Act applies certain numbers. The manner of numbering is set out in paragraphs (a) and (b) of sub-section (1), but sub-section (2) says that non-compliance with sub-section (1) of the section shall not affect the validity or the coming into force of any statutory instrument. It is approximately the same point as was raised yesterday and I think the Minister will agree with me that it is very unsatisfactory as it stands, that the Act should impose on the Stationery Office an obligation to assign to each instrument printed by the Stationery Office a particular number, making the numbering a part of the law affecting the validity of an instrument or Order printed on behalf of the Government and then proceeding to say that, however, if they do not do that, it does not matter, it will not affect the validity or the coming into force of an Order or instrument. Personally, I do not know how we are to overcome the difficulty which the Minister is guarding against, namely, an oversight. I do not know how he can guard against it, but I think the Minister will agree that, as the sub-section stands, it is unsatisfactory and needs tightening up.

The Senator will remember that all Orders are not of a punitive nature. There are some Orders that confer benefits and it might so happen that, by an oversight, something that was conferring a benefit was published and not numbered. It could be an Order of that kind also.

That is very plausible.

I am merely saying that that is so. There may possibly occur a case when, through inadvertence, someone does not do what he is required to do and it would be too bad if the Order was not effective for that reason. If it should become anything like a practice, as long as the two Houses of the Oireachtas are there, Senators and Deputies will soon draw the attention of the Government to the fact that there was non-compliance with the Act. I am sure the Senator knows that is the case. I think you must have this saver in case there might be, through inadvertence, neglect to comply with this provision. I have considered it since and I took it to the Attorney-General and he says it is essential that that saving clause should be left there. I have met the House fairly well about other points and I think the House ought to let that go.

I am not anxious to do anything that will embarrass the Minister in regard to this Bill now but I do point out to the House that it is a most unusual practice to introduce a Bill for the purpose of enacting a law and to insert in the Bill a saving clause, that, notwithstanding all the precautions we are taking in this Bill, notwithstanding everything we say must be done, if somebody slips and the provisions of the Act are not complied with, it will not matter a tu'penny ticket because it will have the same force and validity as if everything was done in order. I think that is objectionable. I merely draw attention to the matter because I realise, as I said in the beginning, the problem which the Minister is confronted with, that is, the problem where a slip is made. It certainly is a bad practice for this House to agree willingly to the insertion in legislation of a saving clause which makes nonsense of all the provisions of the legislation.

I wish to support Senator Duffy very strongly on this occasion. This is merely an effort to cover up a departmental mistake; and where a departmental mistake can be covered up, there will be less effort made to prevent such mistakes occurring.

I would not support the amendment, for this reason. It applies only to Orders to which the Act primarily applies; in other words, Orders made after 1st January, 1948; and I feel quite certain that the Government have no intention to omit numbering all the Orders that are to come.

Of course they have not, but suppose they do?

It might do somebody out of something to which they are entitled.

I do not want to press the amendment, but the Minister for Justice ought to have a good, firm talk with somebody responsible for the drafting of this Bill and say he is not going to stand over this kind of thing in the future.

Amendment, by leave, withdrawn.
Sections 4 and 5 agreed to.
SECTION 6.

I move amendment No. 13:—

In sub-section (1), page 4, line 47, before the word "The" to insert the words "Sections 2, 3, 4 and 5 of"; and in that line to delete the word "is" and substitute therefor the word "are".

A similar amendment was moved in the Dáil and debated at great length, but the Minister seemed to indicate a firm refusal to accept it. Nevertheless, many of us feel there is a principle involved in the Bill which will take away from the citizen a right he has had for 54 years—that where he is affected by a statute he has 40 days in which to make any protest. When taking away a right existing for that length of time we should be careful, and if I do no more than have recorded on the records of this House a protest on all fours with that in the other House, I will have achieved at least part of my objective.

Even at this late stage, I am wondering whether the Minister could not meet a reasonable feeling that exists; and, if he cannot agree to the 40 days, at least give some period of time in which an interested party can make representations, before the statute affecting him is made permanent. I leave that to the consideration of the Minister.

I certainly cannot change the attitude. I have taken up in this matter. The Act was held not to have applied here at all and where it was supposed to have applied, the principal section, the one which gave the 40 days, was never observed and they relied on Section 2, which gave authority to make provisional Orders. I understand the practice was to leave them provisional and never confirm them. Therefore, it may be said that neither here nor in Britain did this Act apply, so we are not really taking anything from any citizen in this Bill. We are making a definite arrangement that, in the future, these things will be printed. Regarding the notice, that could not be done in modern times, where things are so urgent. We could not possibly give time like that. Fifty years ago, things were different.

Amendment, by leave, withdrawn.

I move amendment No. 14:—

In sub-section (1), page 4, line 47, after the word "repealed" to insert the following words: "but every statutory instrument made before the first day of January, 1948, which complied with the provisions of the said Act shall, notwithstanding such repeal remain in full force and effect."

Section 6 (1) says:—

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

and I want to insert the words of this amendment after that. As the House knows, the Orders had to comply with that Act and that defined a proof that was to be given of them and how they were to be promulgated. Now, when repealing the Act, I put in this amendment to find out if the Minister has considered the effect of the repeal on Orders already made.

It has no effect.

Does not the Interpretation Act apply?

The Orders depend on the parent Act under which they were made.

If the Minister has considered it, I am quite satisfied.

I have considered it.

Amendment, by leave, withdrawn.
Sections 6, 7 and Title agreed to.
Bill reported with two amendments.
Agreed to take the Report and Fifth Stages to-day.
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