Seanad Éireann debate -
Thursday, 29 Jul 1948

Vol. 35 No. 8

Statutory Rules, Orders and Regulations—Motion.

Mr. Duffy

I move:—

(1) That a Select Committee, to be nominated by the Committee of Selection, be appointed to consider every Statutory Rule, Order or Regulation laid, or laid in draft, before Seanad Éireann in pursuance of a statutory requirement with a view to determining whether the special attention of the Seanad should be drawn to it on any of the following grounds:—

(i) that it imposes a charge on the public revenues or contains provisions requiring payments to be made to the Exchequer or any Government Department or to any local or public authority in consideration of any licence or consent, or of any services to be rendered, or prescribes the amount of any such charge or payments;

(ii) that it is made in pursuance of any enactment containing specific provisions excluding it from challenge in the Courts, either at all times or after the expiration of a specified period;

(iii) that it appears to make some unusual or unexpected use of the powers conferred by the Statute under which it is made;

(iv) that it purports to give retrospective effect to a Regulation, Rule or Order where the parent Statute confers no express authority so to provide;

(v) that there appears to have been unjustifiable delay in the publication or in the laying of it before the House;

(vi) that for any special reason, its form or purport calls for elucidation.

(2) That the Select Committee shall:—

(a) consist of nine members of whom three shall form a quorum;

(b) have power to sit notwithstanding any adjournment of the Seanad and to report from time to time;

(c) have power to require any Government Department concerned to submit a memorandum explaining any Rule, Order, Regulation or Draft which may be under their consideration or to depute a representative to appear before them as a Witness for the purpose of explaining any such Rule, Order, Regulation or Draft.

(3) That it shall be the duty of the Committee before reporting that the special attention of the Seanad should be drawn to any Rule, Order, Regulation or Draft to afford to any Government Department concerned therewith an opportunity of furnishing orally or in writing such explanations as the Department may think fit and the Committee shall have power to report to the House, from time to time, any memoranda submitted or other evidence given to them by any Government Department in explanation of any Rule, Order, Regulation or Draft.

(4) And it shall be the duty of the Clerk of Seanad Éireann to provide for the Committee clerical or such other assistance and facilities as they may require.

The purpose of this Motion is to enable a committee to be set up for the object set out in the motion. It is a matter entirely for the House, as to whether they desire this committee established and as to the manner in which it will be constituted. If the House agrees to the motion the committee which will be set up under it will be required to consider whether Orders which are laid on the Table are in conformity with the statutory instrument which authorised the making of such Orders. The committee will also have the function of preventing abuses creeping in, where statutory authority is used to make Orders which may emanate from a Government Department or from some subsidiary body. There is a number of these statutory authorities with power to make by-laws, rules and regulations and, in the course of this Debate, we will, probably, have an opportunity of looking at some of them, and judging the manner in which the authority transmitted by the Oireachtas is interpreted by the rule-making body.

There will be a further duty placed on the committee. It will be expected to bring to the notice of the public obscure regulations which, otherwise, might never come to the knowledge of the public at all. There have been instances in the past, in which regulations and orders made under statutory authority were not available to the public, even instances where considerable public interest and public welfare were concerned.

I should say that, although I have been endeavouring to till this field for a long time, I am not by any means a pioneer in this field. This House was asked on a number of occasions during the past 25 years to set up some machinery charged with the duty of following up the manner in which delegated legislation was operated in this State. I think Senator Douglas was associated on one occasion with a proposal of the kind, and I know that the late Senator William Magennis expressed concern on this subject more than once in this House.

The first instance I find, however, of a proposal to set up a committee or body charged with the duty of keeping tab on subsidiary legislation—that is rules, orders and regulations—was the late Senator Colonel Maurice Moore who at an early stage in the life of the Seanad, was desirous that a committee should be set up, perhaps not on the lines now proposed, but a committee which would keep the House informed with regard to the manner in which subsidiary legislation was operating.

When I raised this question a little over a year ago Senators, I think, were concerned about two or three points to which, perhaps, I might now be permitted to refer. For instance, a question was raised by some Senator whether in fact this was not the kind of job which should be referred to a Joint Committee representing both Houses. I took the line then, and I take the line now that the Seanad has a duty imposed on itself, irrespective of what Dáil Éireann may do in these matters. Further than that, the Seanad in the nature of things has more time in which to perform the duties which would be imposed on this committee than members of Dáil Éireann have.

We had an experience a couple of weeks ago where the Dáil found it necessary to extend the hours of sitting, very considerably in order to get through the consideration of the estimates before the end of July. The Dáil also has functions in connection with finance which do not concern us at all. Our responsibility in regard to finance is very limited and the number of hours that we are expected to give to the consideration of financial matters is very few indeed compared with the period devoted to their examination by the Dáil. It seems to me, therefore, there is a good reason why the Seanad should accept this responsibility for itself without asking for the co-operation of the Dáil. Furthermore, we have no guarantee that the Dáil if so invited would co-operate with us in setting up a joint committee. They might consider it preferable to have a committee of Dáil Éireann. As you know there are committees of Dáil Éireann for various purposes; there is, for example, a committee in connection with public accounts. We are not asked to co-operate in these committees set up by the Dáil from time to time and I imagine that they might reasonably tell us that this is a matter for ourselves.

The fact that there is no Minister in attendance here this evening and that there was no Minister here on the last occasion on which we discussed a matter of this kind is an indication that the Government regard this matter as being the concern of the House itself. Another point made when this subject was being discussed previously was that in the last analysis it is a duty that devolves on every individual in this House to examine these statutory instruments and to take whatever action they consider appropriate in connection with them. I do not think it unreasonable to say that the great majority of the members of this House do not consider it their duty, evidently, to make themselves acquainted with the ramifications of the statutory regulations or orders laid on the Table. It is not an easy matter to do so. Regulations are often made by reference and their examination may involve considerable time and a considerable amount of research in order to get at the original of the regulation itself. In passing, perhaps it is not unreasonable to draw attention to the fact that the three motions which were moved this afternoon, by Senator M. Hayes originally came before this House on July 1st but we had to leave them go unexamined because, unfortunately, no member of the House could tell what the three motions referred to. They were proposed by Senator Hayes this afternoon and explained by him but on the 1st July no member of the House, including myself, was acquainted with what was involved.

Mr. Hearne

The Minister did not know.

Mr. Duffy

That is my point.

Mr. M. Hayes

That is not exactly correct. The Minister for Industry and Commerce was present but had no brief on the matter. He had expressed his desire to be present for them but he had multitudinous duties and it is not a fair criticism of him to say that he was not prepared to deal with these particular motions. He could not come to the House to-day or yesterday.

Mr. Duffy

I am criticising no one. I am drawing attention to the fact that there was no member of this House, including myself, able to say what those motions referred to.

Mr. Hayes

I think that Senator Summerfield knew what one of them was about and Senator Douglas knew what another of them was about and the third, on the face of it, was about sugar.

Mr. Duffy

My point is that members of the House do not come into the Library, take down every Order and go back to the source from which each Order emanates. I had occasion, recently, to look up an Order made some time last year. It consisted merely of half a dozen lines but in order to discover the source of the Order I had to wade through statutory instruments going back to 1920, so as to find out what was done by the Department of Finance last September.

Mr. Douglas

That is a very short time.

Mr. Hearne

The Senator is setting a very high standard.

Mr. Duffy

If members of the Seanad did take down the regulations and made themselves familiar with their provisions there would, of course, be less need for this motion although there still would be some need for it because, having read the regulations and having made ourselves familiar with their purport, the individual member of the House is still up against the fact that if he moves on his own, so to speak, and puts down a motion to annul the regulation he has to contend with the doubts and misgivings of all his colleagues. They may be unwilling to subscribe to the view of a particular Senator that the regulation is a bad one or is ultra vires, but as likely as not the House may prefer to leave the matter alone. If on the other hand there is a report from a committee, a committee of members of the House, chosen by the House and representing different interests in the House, as to something in a regulation which in their view ought to be inquired into the House will be more easily persuaded to look into the subject with more confidence and to accept the view that the regulation demands attention.

I should perhaps say that this question of delegated legislation is causing anxiety in many democratic countries. It has been the subject of a number of motions in the British Parliament. It has prompted certain well-known writers to publish books in relation to it and induced the opinion that there is something which needs to be done to keep delegated legislation under review and induced the British Government to appoint a committee of inquiry, the Donoughmore Committee, to report on it. Two things will be obvious from the report of the Donoughmore Committee. One is the inevitability of delegated legislation and the other the need for some supervision over the authorities to whom Parliamentary authority is delegated. Perhaps I might be permitted to quote an extract from the report of the Donoughmore Committee as follows:

If large and complex schemes of reform are to be given technical shape, it is difficult to work out the administrative machinery in time to insert in the Bill all the provisions required. It is impossible to foresee all the contingencies and local conditions for which provision must eventually be made. The national health insurance regulations and the orders setting up trade boards illustrate particularly well this aspect of the problem. The practice further is valuable because it provides for a power of constant adaptation to unknown figure conditions without the necessity of amending legislation. Flexibility is essential. The method of delegated legislation permits of the rapid utilisation of experience and enables the results of consultation with interests affected by the operation of new Acts to be translated into practice. In matters, for example, like mechanical road transport, where technical development is rapid and often unforeseen, delegation is essential to meet the new position which arises.

That, I think, states the case very fully for delegated legislation, and I must not be regarded as offering a criticism of the practice which has grown up, the practice of this Oireachtas like that of other Parliamentary institutions, delegating much of the minor powers arising out of legislation to subordinate bodies, whether they be Ministers, civil servants or statutory bodies. I think it is inevitable that that delegation should take place in modern conditions. I am concerned, however, that, having delegated our authority to a subordinate body, we are not going to lose sight of what is being done by that subordinate body. The House, I think, is familiar with the fact that the regulations or orders made under various statutes differ materially one from the other. You have, for instance, the practice of making a provisional order—that was very common in local government legislation over a period of years— I think, back to the days of Queen Victoria, as Senator Hearne will remember.

Mr. Hearne

Why Senator Hearne?

Mr. Duffy

I thought the Senator would probably like to know that there were some relations between Victoria's regime and the very modern method of delegating legislation to which I refer—the practice of making a provisional order which did not have effect until ratified by Parliament. We had experience of that kind of order here in April last. On 21st April, this House confirmed the Summertime Order, 1948. That Order was made by the Minister for Justice under the Summertime Act, 1925, but it was inoperative, until ratified by both Houses of the Oireachtas. The Minister for Industry and Commerce in the last Government reverted to this practice in the Harbours Act. Under that Act where a harbour authority proposes to acquire land for the purpose of its functions it does so by provisional order, which subsequently is ratified by Act of the Oireachtas. The important thing to remember is that the provisional order does nothing, confers no authority on the harbour authority, until the confirming Act is passed.

We have other kinds of orders, too—invented by ourselves, not importations. So far as I know, the Control of Imports Act, for instance, is peculiar to this country. It authorises the Minister to make an order which has a limited life. As an example I might mention the Imposition of Duties Orders made under the Emergency (Imposition of Duties) Act, 1932. These Orders are made by the Minister under statutory authority, but they have effect for a limited time only; if they are not ratified by the Oireachtas they cease to have effect eight months after being made. In other words, if an Order imposing a tariff on some imported commodity were made under the Emergency (Imposition of Duties) Act it would have a life of some months, and, at the end of that period, unless confirmed by Parliament, would expire. The point I am trying to make in relation to these Orders is that the making of them or the authority to make them does not take away from the supreme authority of Parliament at all—the Legislature is still supreme. It does give a temporary use of power to a Government Department, but at some time or other that power lapses, unless the matter concerned is brought to the notice of the Oireachtas, and the necessary legislation enacted.

I want to come now to the type of Order with which in this discussion we will be mainly concerned, that is, the orders or regulations made by a Minister which have the force of law immediately. Their appropriate position in our legislative system is clearly defined in section 19 of the Local Government Act, 1941, which provides that: "Every regulation made under this section shall have the force of law in accordance with its terms." That is a common feature of many of our Acts as it was a common feature of many of the Acts which we took over from the British Administration. The provisions in our statutes enabling a Minister to make regulations having the force of law without reference to anybody has been going on pretty generally over the last 50 years. There is a practice, which this House has insisted upon frequently, where power is given to a Minister to make regulations, that the Minister shall table the regulations in both Houses of the Oireachtas and usually, not always, there is a provision in the Act that the regulations may be annulled by either of the Houses. In other words, we have also the power of annulment, enjoyed by Dáil Éireann.

One of the objects of tabling regulations made by a Minister is to secure that there will be publicity for it, that the public will be made aware by newspaper reports or otherwise, that a particular regulation has been made, and that it will not be sprung on them. Unfortunately, there were some departures from that practice over a period of years. When we discussed this subject here last year, I quoted a number of instances where the Supreme Court and other authorities complained that regulations which affected the public intimately were not available and could not be procured even by the Court itself. Following that debate, although the motion which I submitted was not adopted by the Seanad, we had a very valuable measure introduced by the Minister for Justice, the Statutory Instruments Act, which now changes the position to a considerable extent so far as publicity is concerned. Under the Statutory Instruments Act, the Government are required to print all Orders to which the Act applies. They are obliged to print and they are also obliged to make available copies of all statutory instruments to a number of public authorities, the only exception being the library of Leinster House. The Library of the Chamber of Commerce, in Galway, Waterford, Limerick. Cork and Dublin, and the Universities, can all get copies of the printed Orders but there is no obligation on the Minister to table any of these statutory instruments in the Library of this House.

Mr. M. Hayes

They go there automatically.

Mr. Duffy

I was going to point out that the obligation to send the printed Orders within seven days to Leinster House Library is not observed. There is no bound volume of any of the Orders made subsequent to 1938. If you want the Orders made in 1939, 1940 and later years, in which thousands of Orders were made, you will find you will have a laborious task searching for them unless you secure the good offices of the Librarian in the Oireachtas and his staff, who will make matters easy for you. The Librarian in Leinster House has in fact, on his own initiative collected a considerable number of volumes, I think all the volumes down to 1942 or 1943, and had them bound with a typewritten index. That is a tremendous assistance to the members of the Oireachtas. The outsider, however, the solicitor, counsel or public representative who wants to consult the Orders made in 1939-40 cannot get a bound volume anywhere.

Perhaps I should say that there was apparently, a good deal of confusion in the minds of Ministers and lawyers regarding the obligations imposed upon State Departments by the Rules Publications Act, 1893. Section 1 of that Act requires that, 40 days before making statutory rules, notice of the proposal shall be published in the Dublin Gazette. The Section also provides for the making of an objection to the proposals and for copies being made available to the public. That section was never complied with by any Ministry in this State, so far as I can gather. The Minister for Justice, who introduced the Statutory Instruments Bill here, made the point that the Act was believed not to apply to the State. However, Chief Justice Kennedy held that the Act did so apply. Chief Justice Sullivan on the other hand held that it did not apply. There is, however, some evidence that certain Departments of State believed it did apply. In an Order made by the Land Commission on the 6th May, 1931, I find this reference:—

"In exercise of the powers in that behalf conferred by Section 2 of the Rules Publication Act, 1893, the Land Commission certify," etc.

This reference is to a Section which exempted certain authorities from the obligation to publish the proposed rules 40 days in advance of being made if for some good and sufficient reason they thought it was not desirable to do so or that it would be impossible to do so. So that, at least there is this evidence that the Land Commission believed the Rules Publication Act applied to this country and acted accordingly.

That is, of course, no longer a matter of importance because the Rules Publication Act is repealed and its place is now taken by the Statutory Instruments Act, which became law on the 20th December, 1947. In this connexion I should say that under the Statutory Instruments Act statutory instruments, that is, rules, regulations, statutes and so forth, made after 1st January 1948 which are made by the authority of the President, the Government or any member of the Government, Parliamentary Secretary or other bodies, must be published. If I do not make a great mistake, I think these instruments must be published seven days after being made and within seven days of the making thereof, a copy thereof must be sent to each of the following, namely, the National Library of Ireland, the Law Library, Four Courts, Dublin, the Incorporated Law Society of Ireland, the Dublin Chamber of Commerce, the Cork Chamber of Commerce, the Limerick Chamber of Commerce, the Waterford Chamber of Commerce and the Galway Chamber of Commerce. The one remarkable omission in this recital is the Oireachtas Library.

I propose now to refer to one type of section which appears so frequently in Bills emanating from the Department of Local Government especially, and in those which come from other departments as well, which has caused a good deal of uneasiness from time to time. Quite recently, for instance, we had a Social Welfare (Reciprocal Arrangements) Bill before us which contains this clause:

The Minister may make such Orders as may be necessary to carry out any arrangement made under Section 2 of this Act and may by any such Order make such adaptations and modifications in any enactment for the time being in force relating to the subject matter of the arrangement as he considers necessary.

In other words, the Minister is taking power in this instance to adapt and modify statutes and regulations in such a manner as he thinks fit. This is followed by a sub-section which provides that every Order made under the Act shall be laid before each House of the Oireachtas after it is made. The corresponding paragraph in the Local Elections Bill of 1948 says:

If a resolution annulling the Order is passed by either House within the next 21 days on which that House has sat after the Order is laid before it, the Order shall be annulled accordingly without prejudice to the validity of anything previously done.

Senators will observe that, in both cases, the Order modifying or adapting a statute must be laid on the Table. In one case nothing happens after the Tabling of the Order. In the other case, either House is free, if it thinks fit, to annul the Order after it is Tabled.

Senators who were members of the House when this matter was previously discussed will remember that there was reference then made to what is known as the Henry VIII Clause. A case has been made for it in many publications. I disliked it, and I have opposed it in this House. I have endeavoured to ensure that, wherever possible, an Order made under that kind of clause would be laid on the Table and be capable of being annulled. I want now to make a case for the retention of the clause. Recently, I endeavoured to find some evidence that the Henry VIII clause was abused. I could not find any evidence to that effect, but I did find something else. I found that it was used in the present year to overcome a grave national difficulty. I refer the House to Section 62 of the Electoral Act of 1923 which provides, inter alia, that: if any difficulty shall arise in the holding of any election and the Minister for Local Government is of opinion that such difficulty is an emergency requiring to be removed immediately, the Minister may by Order do anything which appears to be necessary to enable the election to be held.

During the course of the last general election a serious difficulty arose in the constituency of West Donegal when it was found on Polling day, the 4th February that owing to the inclemency of the weather the poll could not proceed on Iowey Island. Availing himself of the powers conferred 25 years earlier under Section 62 of the Act of 1923, the Minister made an Order directing that the poll on this island be taken not on the 4th February but on the first day thereafter on which it was found possible to cross to the island from the mainland. When I am criticising these powers and drawing attention to the danger which underlies the extensive granting of them, I am not to be taken as alleging that there has been abuse in their usage. On the contrary I am now drawing attention to the fact that this was a very valuable section to have in the 1923 Act. I am not sure that it was ever used before. But 25 years after the Act was made law there was an occasion to use it in circumstances to which I have alluded.

Mr. Hawkins

We have used it in Galway.

Mr. Duffy

Sometimes they do things in Galway for which there may be no statutory authority. I am quite certain however that if Senator Hawkins was associated with the doing of anything under that Act in Galway, it was done properly.

I have already said that, apart from Ministers and Government Departments, there are very many other bodies on whom the power to make by-laws and regulations is conferred. For instance, between 1923 and the outbreak of war in 1939 the Land Commission published 500 closely printed pages of regulations, most of which were marked "provisional." The E.S.B., under a section of the Electricity Supply Act, has power by order to declare not to be so a public navigable river notwithstanding any provision in any Act to the contrary. The E.S.B. can make an order on its own and the penalty for an infringement of it is a fine of £50.

Section 53 of the Arterial Drainage Act of 1945 confers on the Board of Works extensive powers to make bye-laws and provides that a document purporting to be a bye-law shall be received in any court as conclusive evidence that it is a bye-law, and was duly made and approved of, and that it is in force. The Revenue Commissioners, the Garda Síochána, the C.I.E.—all these bodies have power to make regulations which have the force of law.

Mr. Hearne

But surely the Court would have to be satisfied that the Order had been made.

Mr. Duffy

If the E.S.B. makes a regulation under the section I have mentioned the Court cannot inquire whether it was properly made or not. If there is a person before the Court charged with having violated the regulation the Court has the power to impose a fine of £50. The case I have quoted about regulations made by the Board of Works rules out any inquiry by the Court as to whether the Order was properly made. I have quoted the bye-law already, and Senators will see that there is nothing for the Court to inquire into except the fact of the contravention.

Mr. Douglas

If I were to go to a Court with a piece of paper in my hand and with something written on it, the Court would hardly accept that as a bye-law purporting to be made under an Act without further proof.

Mr. Duffy

These bye-laws, I assume, are printed and published by the Stationery Office. That is the evidence of their authenticity, but the Stationery Office is not authorised to inquire into the manner in which the Board of Works makes a bye-law, for instance. I am suggesting that there is a duty on this House to see how these powers are being exercised, and that, where there is something objectionable, to have the matter brought to the attention of the House.

While I am on that subject may I draw attention to something which came under my notice quite recently and which, I think, is rather disturbing. I have drawn attention to the fact that the E.S.B. can make regulations setting aside rights conferred on the community at large by statute. I now draw attention to something which is more significant. Paragraph 1 of the first Rule of the District Court Rules, 1948, which came into operation on the 31st March of this year, says:

"Where these rules conflict with any statute in force at the date of the making of these rules, such statute shall be modified or adapted to the extent of such conflict..."

I do not know whether the Minister for Justice who made the Rule or the Rule Making authority, consisting of a number of solicitors, barristers and District Justices, would have any power at all to make Rules in such terms, bearing in mind, that there is nothing to indicate what statutes are modified, to what extent they are being modified and why they were so modified. The District Justice is evidently authorised to modify or adapt any unnamed statute if he finds it conflicts with the District Court Rules. I do not know whether there is any other meaning to be attached to this Rule. Certainly I was astounded when I came across it.

In relation to other rules and regulations made from time to time, I must draw attention to instances in which something was done which in my view was not authorised by statute. The first example I give is that of a regulation relating to Dublin which was made by the Commissioner of the Garda under Section 118 of the Road Traffic Act, 1933. This regulation, amongst other things, dealt with loitering. I could not find anything in the section authorising the Commissioner to prevent loitering. I want to draw attention to this fact, that when making regulations applying to Limerick six months later he omitted all reference to loitering. This is a matter which a committee, had it been established, might very well consider, and might ask the Commissioner to tell them what it was all about. They might be satisfied that he was acting within his authority, or they might consider that he had done something which was ultra vires the statute, and should be amended.

The second example I want to refer to is an incident in March, 1937, when the Minister for Local Government made certain regulations under the Labourers Act, 1936. These regulations were revoked 17 months later because they were defective. I took the trouble of reading the original set and later on of reading the amending regulations, and discovered that one sentence appearing in the amended regulations did not appear in the original regulations. Therefore, I was satisfied that revocation took place, when it was discovered, during a period of 17 months, that the original regulations were defective.

I refer now to Regulation No. 48 of 1935 made under the Road Traffic Act, 1933. Section 121 of that Act limits the number of persons who may lawfully be carried on a public service vehicle. It confers upon the Minister for Local Government, however, power to authorise the carrying of a greater number of passengers, but only in specified special circumstances, or on specified special occasions or during specified hours. Regulation No. 48 permits the carrying of a greater number of persons "during the hours of peak traffic." What are the hours of peak traffic in Ballybunion? Take Dublin, what are the hours of peak traffic in Dublin? Is not that a matter about which a Garda officer and the conductor of a bus are liable to quarrel? There is nothing in the regulation defining the hours of peak traffic, and, in any event, as a layman I consider that peak hours of traffic do not constitute special circumstances or a specific special occasion or specific hours.

Mr. Hawkins

The Senator would if waiting hours for a bus.

Mr. Duffy

Perhaps. Two questions occurred to my mind when I read the regulation. The first was, whether, in fact, that regulation is enforcible, and whether the Minister had any power to make it; secondly, whether the Minister ignored the public interest he was obliged to defend when he made a regulation permitting Coras Iompair Eireann to carry passengers in respect of which no duty was payable. If, for instance, C.I.E was permitted to operate a 40-seater bus, it was paying tax on 40 seats, but if it was allowed to carry five additional passengers from Dublin to Sligo, it was carrying people for whom no tax was payable. That is a subject, however, that we need not discuss on this motion.

Before I leave the question of delegated legislation, conferring authority on a non-Government Department to make rules, bye-laws and regulations, I want to refer to one incident which I mentioned here before. It refers to bye-laws made by Córas Iompair Éireann on November 28th, 1946. A notice published in the morning newspapers on 21st November and 28th November, 1946, read:

Notice is hereby given that Córas Iompair Éireann, having their principal office at Kingsbridge station, Dublin, pursuant to the Tramways Act, 1870, have made the following bye-laws and regulations...

These are set out, their main purport being to confer on a conductor power to remove me from a tram if he wants to remove me, when a tram comes to a terminus. The bye-laws provide that a fine of 40/- will be imposed on me if I refuse to leave the tram on request. When I looked up the authority under which that bye-law was made I turned to Section 2 of the Act. It says:

This Act shall not apply to Ireland.

We had also experiences of Government Departments forgetting all about regulations made by themselves. On a previous occasion I quoted an incident where the Department of Finance completely ignored regulations made by themselves over a period of 21 years. It had reference to the Unemployment Insurance Act, 1920. Section 12 of that Act provided that such sums as the Treasury shall direct, not exceeding one-tenth of the proceeds of the Unemployment Insurance Fund, shall be applied as Appropriations-in-Aid for the purpose of cost of administering the Act. Then Treasury Regulation No. 1854 provides that each year the Treasury shall ascertain whether the one-tenth exceeds the expenditure and, if so, shall so certify to the Minister in order to enable him to make a proper adjustment. When that regulation was revoked in November, 1946, a question was asked in the Dáil to ascertain from the Minister what returns had been made under Regulation 1854 during the period it was in force. The reply was interesting and can be found in the Dáil Reports for the 4th December, 1946. It concludes thus:

The calculations mentioned in paragraph 7 of the earlier regulations were never made and no certificate was given under paragraph 8.

These were regulations imposing on the Department an obligation to certify to the Minister whether the sums collected by him were excessive, so that if they were he would be required to make adjustments, in other words, to restore to the fund some portion of the money hitherto extracted and thereby increase the sum available for payment of unemployment insurance benefit. These regulations were entirely ignored for 21 years.

Regarding the method by which we can, as a legislative chamber, safeguard ourselves against the danger of abuses which obviously exist, the Donaghmore Committee to which I referred previously says:

We see in it——

That is, in delegated legislation—

a definite advantage provided that the statutory powers are exercised and the statutory functions performed in the right way, but risks of abuse are incidental to it and we believe that safeguards are required, if the country is to continue to enjoy the advantages without suffering from the inherent dangers.

There are many authorities who will support the view that checks are inevitable and it has been generally agreed that a committee such as is proposed in this motion affords the necessary safeguards.

Speaking here on the 24th July, 1942, when objection was taken to the powers conferred on Government Departments under the Emergency Powers Act, Mr. de Valera, who was then Taoiseach, said:

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

At that time, one of the people who was very anxious about the appointment of a committee such as is now proposed was the late Professor Magennis, who was a member of this House at that date.

Objection has been raised in certain quarters to the appointment of a committee of this kind because of the amount of work that would fall upon it and questions are asked as to whether that work can be performed. I have been looking at what has been done elsewhere by an analogous body and find that the amount of work is not as great as one would imagine. There is a committee in Britain charged with much the same duties as those outlined in this motion. It has been operating since 1944 and in the Parliamentary Session, 1945-46, the total number of orders examined was only 947.

Mr. Hearne

About how many Orders were made?

Mr. Duffy

About 4,000.

Mr. Douglas

What happened the others?

Mr. Duffy

There was no need to examine them.

Mr. Hearne

They had not time to examine them.

Mr. Duffy

In many cases there was no need to examine them, as they could not do anything about them. here is no need to examine an order unless there is power to annul it.

Mr. M. Hayes

I wonder if that is quite so.

Mr. Duffy

The British committee sat in 1945-46 on 23 occasions and out of the 947 orders examined, they found it necessary to report only 33. They called for an explanatory memorandum on 19 occasions and examined witnesses on three occasions, including the Secretary to the Lord Chancellor of England. The report of that committee gives an idea of the kind of report required. It might help us to realise what is involved if I quote some extracts from it. For the session 1945-46, in its Fifth Report, the committee said, reporting to the House of Commons:

"Your committee have considered the Local Government Boundary Commission Regulations, 1945, a copy of which was presented on the 16th November, and are of opinion that there are no reasons for drawing the special attention of the House to them on any of the grounds set out in the order of reference to the committee."

In other words, there was some discussion, they examined the regulations and said there were no grounds to report them.

In their Sixth Report, I find this paragraph:

"They have also considered the Order in Council amending regulation 442 C.A. of the Defence General Regulations, 1939, a copy of which was presented on the 16th November and are of opinion that the special attention of the House should be drawn to it on the grounds that it appears to make some unusual or unexpected use of the powers in the Statute under which it was made."

The committee is not bound down to specify the detailed point of objection. They simply say that there is something unusual about an order and then it is a matter, as usual, for individual members of Parliament to take action.

If this committee is set up and if we have the assistance of officers of the House in getting staff to do whatever duty would be allotted to them by the committee, it seems to me that the duties of the committee will not be onerous.

The fact that there is a committee sitting and that there is a likelihood of their reporting on something that may have escaped the attention of the draftsman will make everyone in the Department, in the draftsman's office or wherever they may be, very careful in ensuring that the statute will be complied with. I believe that this proposal is worthy of a trial. It merely proposes that the Seanad will appoint a committee, a committee selected in the usual manner by the Committee of Selection. If at the end of this Parliament it is thought that the Committee was of no particular assistance or that it was not the right type of machinery for dealing with this problem some other plan can be tried. I strongly urge the House to adopt this resolution and to give the plan which it contains, a trial.

Professor O'Brien

I wish to express my agreement with what Senator Duffy has said.

An Cathaoirleach

The motion requires a seconder. Are we to take it that you, Senator, are seconding it?

Professor O'Brien

If it requires a seconder, I am prepared to do so, gladly. I think the questions involved in this are questions of constitutional importance and questions that are very properly raised in this House for reasons which I will come to in a few moments. I think the motion raises questions of constitutional importance that affect the rights of the citizens of the country, which it is our proper function to safeguard. We have to accept whether we like it or whether we dislike it, that we have arrived at an age of economic planning and, that being so, that you will have a large amount of economic administrative orders. As an individualist regretting the necessity for administrative planning and advocating individual liberty and individualism, one might be accused of regretting the passage of an age which has gone and asking for the return of some Utopia that will never be realised again. I think it is important to draw a distinction between what is an ideal and what one regards as practicable in any given situation. I am prepared to accept that we have arrived at a period in history when the State has to take a larger part in the regulation of the individual's conduct than it had 50 years ago. I do not say that I do not regret it but I accept it. It seems to me that the position of the individualist in the middle of the 20th century is somewhat analogous to a medical man who has a patient rather ill. The medical man admits that his patient requires a special diet, special treatment, crutches and maybe a bath chair. He admits that he has got to have all these aids to keep him going; he regrets that they are necessary and he would prefer that the patient was healthy. But admitting the weakness of the patient, he has to try to provide the best means he can of giving this person a reasonable degree of health in the circumstances. The state of the world to-day is the result of two great wars as well as other causes. It is unable to stand on its own feet and therefore it requires a great deal of assistance in the control and administration of affairs which could be dispensed with in a healthy society. We have to accept the necessity for a considerable amount of regulation although some people consider this a rather deplorable condition. It is necessary, at the same time, to keep this administrative interference down to the minimum. It must not be allowed out of control like some sort of internal cancerous growth that is eating up the whole healthy tissues of the free individualist society. I think it is the duty of people in a legislative assembly like this, in a country still priding itself on its free institutions, to preserve the greatest degree of individual liberty against the administrative interference that is necessary owing to the facts of the situation. It seems to me that the most important principle of liberty in modern society is not what is called democracy and not necessarily, universal suffrage, but what is called by the constitutional lawyers, "the rule of law." I would refer the Seanad to a very remarkable book which I am sure the majority of them have read, and if they have not read it, I recommend that they should read it. It is "The Road to Serfdom," in which the author, Professor Hayek, draws attention to the fact that the true ground of liberty in a free society is what he calls "the rule of law," that is, that every single person in the community should know his legal rights and obligations, should know precisely that those legal rights and obligations are not altered ex post facto by any body, legislative or otherwise. The second essential of the rule of law is that everybody should have recourse to the ordinary courts of law at some stage, that is to say that everybody should have recourse to the courts of law under the Constitution, the courts administered by irremovable judges selected impartially for their legal attainments, and that there should not be a special code of law for any particular class of people. I do not suggest for a moment that we have to accept in its purity the rule of law on which I was brought up 40 years ago under Dicey's great “Law of the Constitution.” My reading of the rule of law is that at some stage every citizen of the country should have the right to challenge and to bring the Government and the Government officials before the ordinary constitutional judicial tribunals of the country. It seems to me that that is what I would call the rule of law and that rule of law is in danger of violation to-day.

Senator Duffy has given a number of examples of administrative orders which seem, on the face of them, at any rate, to be questionable from this point of view. There is a mistaken notion at large that, because we live in a democratic country, tyranny can no longer exist. The struggle for freedom in Europe was conducted for so many centuries against privileged minorities that people may not realise that we have now reached an epoch when the danger which the ordinary citizen has to encounter is the tyranny of the majority. Recent European history has shown that some of the worst infringements of liberty, some of the worst totalitarian régimes have been quite constitutionally established, that the ordinary machinery of election has been used in many countries in Europe in order to erect totalitarian régimes which, when they have been erected, have proceeded to destroy the ladder on which they climbed to power. I do not suggest for a moment, I am glad to say, that there is any danger, of anything of that kind happening in this country, but there is this danger, that, where you have the Executive of a country responsible to a Chamber which is elected by universal suffrage, where the Executive has very considerable powers under these various statutory rules and orders to interfere with the liberty of the ordinary citizen, the right of the individual citizen may sometimes be sacrificed to some passing whim of the majority.

I could say a great deal more about that, but it does seem to me to finish on the note on which I began, that it is precisely to guard against evils of that kind that most modern constitutions have erected a second Chamber. The trouble with single chamber government is that the will of the majority of the people, which may be expressed as a result of some wave of emotion, some irrational sentiment, may quite easily bring a government into power which, supported by that popular enthusiasm, may do something which undermines the individual, inalienable rights of the human being. It cannot be sufficiently emphasised, I think, at a time like this, in free deliberative assemblies of this kind, that every human being has certain inborn, inalienable, natural rights. They precede the foundation of the State and can be defended, morally and legally, against interference by the State. That, I think, is a correct statement of political theory. It seems to me that one of the great dangers in modern times is that single chamber Governments will overrun the rights of the individual and it is peculiarly appropriate that the second Chamber which is part of the system of checks and balances in our Constitution should redress this danger. Therefore, I have great pleasure in seconding Senator Duffy's motion. I think he has made a prima facie case for the setting up of a commission of this kind and I commend his motion to the Seanad.

Mr. M. Hayes

I should like to say at the outset that the Taoiseach to-day signified his willingness to come to this debate, if it were thought necessary. I was asked that question before, and, at the Committee on Procedure and Privileges yesterday, we discussed this matter, and it seemed to the whole of us that it was entirely a matter for the House, except with regard to one particular paragraph of the motion, about which I had a word with the Minister for Finance. However, if we are discussing this motion in the absence of the Minister, it is because we considered this a matter entirely for ourselves and we can take whatever decision we like upon it.

Having said that, I should like to compliment Senator Duffy upon his persistence and his industry in this matter. He has obviously given it very great consideration and done a great deal of research in connection with it. There are a number of points upon which we are all in agreement. It would be interesting to go into the question of delegated legislation and the freedom of the individual in general, but I propose to confine myself entirely to what one might call the practical Parliamentary aspect of this matter. It will be agreed, I think, that we cannot now stop delegated legislation. It has become, as Senator Duffy and Senator O'Brien have said, and as we all know, something which we may diminish slightly, but which, in itself, we cannot stop.

It is agreed also that it is impossible for all the members of the House to keep in touch with all the Orders, and indeed impossible for any individual member, no matter how industrious he may be, to keep in touch with these Orders. Senator Duffy's committee is an attempt and a praiseworthy attempt, a detailed and well-thoughtout attempt, to meet that situation, and to enable us to see whether, when Orders are made, they may not be worthy of special attention. But the committee which Senator Duffy proposes here is only one attempt, and one small attempt, so to speak, to fill the breach in the Parliamentary wall which is getting wider and wider every day.

The truth, as Senator O'Brien has very well said, is that all this is part of the imperfection of a Parliamentary system which we have inherited and which was planned to deal with a much simpler state of affairs than that with which we find ourselves confronted. The British Parliament, even 50 years ago, as has been said, was dealing with a few major subjects and was only beginning to deal with all the vast complication with which we are now called upon to cope. If one were to take the Dáil Order Paper for any given day and look at the immense variety of questions, beginning with a question as to whether we are or are not a member of the British Commonwealth of Nations and continuing with a question as to whether the Minister will ask Corás Iompair Éireann to reopen the station at Bally-i-bhfadsíos, and going on to a question of whether the case, in regard to the application by Mr. Patrick Murphy, of somewhere else, for a military service pension could be reopened, one will realise that the scope of Government is now immense, and the truth is that Parliament cannot keep pace with it. This is an endeavour to meet part of that. I think it is a good endeavour, and that we might very well adopt it, but, having adopted it, I think we are merely touching the fringe of a very great problem.

I should like to say that civil servants have delegated to them certain powers and the word "tyranny" has been mentioned, but, so far as I am concerned and so far as my experience of Governments since 1922 goes, I think it would be fair to say that there has been no attempt at a purposeful tyranny on the part of either Ministers or civil servants at any stage. Civil servants and Ministers want to get something done and they want to get it done in the shortest way possible, and they object to the slow, cumbersome, creaking and occasionally verbose machinery of Parliament. That getting things done in a hurry prevents the processes which are associated with the rule of law, and this also might well be put, that the functions of a member of parliament, whether of the Dáil, the Seanad, the British Parliament or any other parliament —the ones we happen to know are those here and the British Parliament —have become immensely widened.

A member of the Dáil particularly, and indeed a member of the Seanad, is supposed to do something much wider, something much more complicated, than merely watching legislation, and the member of the Dáil who does not bother his head about legislation may very well be much more successful at the next general election than the member who sits in and listens to all the debates. I hesitate to say, Sir, that that might apply in some degree even to the august assembly which I have the honour to be addressing at the moment. You see, members of the Dáil have correspondence. Their constituents ask them to get them old age pensions, to get them licences, quotas, houses, jobs, farms, to get them Heaven knows, what.

Mr. Duffy

A spouse, occasionally.

Mr. M. Hayes

I have heard examples of that although it has not come within my particular personal ambit. In any event, one of the things which strikes you is, whether the whole question of our business could not be better transacted through Committees. What is called in the Dáil and here, the Committee of the whole House, very seldom is anything like the whole House. It is very often merely a quorum. It is sometimes difficult to get a quorum of members who are interested and one of the good things about this motion is that it proposes that where a particular matter is in question, there should be power to ask for a memorandum from the Department. On that, may I ask Senator Duffy, when he is concluding, to make clear the precise meaning that is attached to paragraph (c) of Section 2 of the motion. The paragraph reads:

"That the Select Committee shall ... have power to require any Government Department concerned to submit a memorandum explaining any Rule, Order, Regulation or Draft which may be under their consideration or to depute a representative to appear." ...

I take it the meaning Senator Duffy attaches to that, and what he wants to accomplish is, that the Committee shall have power to ask for a memorandum but that the Department will either supply the memorandum or, if the Department likes, send a representative?

Mr. Duffy

Yes. I accept that definition.

Mr. M. Hayes

If that is the definition, I think there would not be any difficulty about it but, as a matter of fact, one of the things which members of both Houses do to a considerable extent now is, they meet officials but they meet them unofficially, outside the House. It may be worth our while to consider whether it would not be an improvement if we had a type of committee to consider Bills before which the civil servant who had been responsible, not for the actual parliamentary drafting, but for the drafting of the material for the Bill, could appear and could speak, not, of course, before the Press. Very often, that would clear up difficulties which take a long time to resolve in public debate. In other words, the question is whether the Dáil and Seanad should not work more by Committees, whether Committees of either House, or Joint Committees.

I know that in France there are considerable powers to committees and my friend Senator Douglas has, I think, made a study of the positon in Sweden where there are committees of both Houses, or joint committees who have considerable powers and functions.

However, there is another point about the committee. This committee —I think, Senator Duffy made it clear already—does not impair and cannot impair the right of the individual member to put down a motion himself, either before the committee reports or after the committee has reported, and I am not sure that Senator Duffy is right in saying that the committee should not deal with orders which there is no power to annul. He mentioned the orders on the Paper to-day dealing with certain matters from the Department of Industry and Commerce. There is not much difficulty about orders of that kind because they need to be approved and, since they need to be approved, an explanation can be demanded from the person who moves the approval or from the Minister if he is in attendance. There are other motions which we have power to annul within a certain period, and there are further Orders which need not be approved and which we have no power to annul but I do not think this committee, if it were to be established, would be prevented from investigating those Orders. I think that kind of an order might very well be investigated also if occasion arose. And, since the making of the Order is an administrative act of a Minister, I think we would not be precluded from debating the matter in the House under a suitable form of motion, and I take the view that it is possible to frame a motion to do almost anything. I think we could do that if we were put to it.

With regard to whether the committee should or should not be a joint committee, I took some exception to a motion of this kind before when it was put in general terms. It is now in very particular terms. I thought for some time that it might be better to ask for a joint committee but, as I say, I regarded the motion as only one particular step in an endeavour to deal with a very wide and complicated problem and perhaps the best thing we could do is, as Senator Duffy and Senator O'Brien have said, to keep to our own peculiar functions, to take the line that the Dáil is very busy with other things, its financial business, Public Accounts Committee, and so on, and see what we can do ourselves in this particular matter, that is, make a beginning and see for a period how it works, leaving the matter entirely for the Seanad. We have much more time than the Dáil, seeing that we have not got any Estimates to do. I think that for the moment, although one might make out an excellent theoretical argument for a joint committee, it would be better, as Senator Duffy suggests, to keep the matter entirely to a Seanad Committee.

As I say, I am in favour of the motion. It is detailed and sets out the particular functions. I do not think it will be costly and I do not think there will be any difficulty in getting a Department to furnish a memorandum on a particular order that the committee wants to discuss, and I think it would be a beginning, perhaps, of a committee system, which might have very important developments and, on that basis, Sir, I think the motion is a desirable one.

Mr. Hawkins

Taking the statements that have been made, I think it is now accepted that all parties in this and the other House agree as to the necessity of legislation by Order. In the past there was very severe criticism when Orders were not brought in in the form of legislation. We have reached the stage now when all Parties and all members agree as to the necessity for legislation by Order. Our views on this matter when we are on this side are the same as they were when we were on the other side. However, as it has been intimated to the House that the Taoiseach is prepared to accept and implement the motion, if any good is going to come from it, we do not propose to stand in the way.

Mr. M. Hayes

On a point of correction. I said that the Taoiseach was willing to come to the House for the Motion. I did not say that he was willing to accept the Motion. He was not asked that. The only thing is that he expressed to the Clerk of the House his willingness to attend, if we thought fit but we had decided yesterday at the Committee on Procedure that we would go ahead without a Minister.

Mr. Hawkins

That was the procedure adopted on the last occasion. As I have already said, we on this side of the House, are prepared to allow the motion to pass without opposition, not that we have changed our views, but that we are prepared to give the setting up of this committee every help and opportunity if it can achieve the objects for which it is proposed to be set up. I would like, however, to emphasise that we are very anxious that the rights and privileges of each and every member should be maintained, that the setting up of this committee, either now or in the future, would not take away from any member of the House the rights and the duty he has to examine every Bill and every Order that is made and if he thinks fit, to have a motion to have such Order annulled placed on the Order Paper, regardless of what the decision of this committe might be.

I also personally want to say that I would agree with the suggestion put forward by Senator Hayes in relation to the joint committee on Bills. I think it would be a very good thing if such committee could be set up and that the Bill would be examined in the presence of the executive officer in charge of implementing the Bill later when put into operation, or even before that. Very many of the snags that often appear might be removed before a Bill would become law. I do not wish to go into the details as set out by Senator Duffy, but I do want to say that I feel that if this committee is going to perform and attend to all the functions that Senator Duffy has put before us, from the examination of every minor order made by C.I.E., and other State or semi-State organisations, I can see that it is going to be a permanent body and that there will be a great deal of work involved in being a member of it.

Mr. Douglas

I also am prepared to support the motion but I do so without any great enthusiasm. I am in agreement with almost everything that Senator O'Brien said, and with a great deal of Senator Duffy's remarks. It is best that we should make an experiment to try what can be done with a committee of nine. At the same time, it is only right to say, that I do not think a great deal of what the proposer and seconder desired can be achieved with a committee of nine. That, however, is not a reason why we should not make a start in order to decide if it will work satisfactorily. As members of a former Seanad know, I have on a good many occasions advocated the adoption of the committee system, not the same as that which operates in Sweden which is of a somewhat rigid character, and is based on a tradition going back for a 100 years, but something not unlike it, adapted to our circumstances here. Consequently, I would much prefer to see this House dividing itself into a number of committees. I would follow Sweden's example to this extent, that I would make it obligatory on every member to belong to one committee and to attend it.

There a special explanation has to be sent in and read out for nonattendance, according to the information given me and which I take to be reliable. The system I should like to see would be to have a committee on agriculture, a committee on commercial problems, divided, say, between industry, transport, and kindred questions. I should also like to see a committee on educational matters and a joint committee on external affairs. What I should like to see would be a committee sitting on every Bill, which would go first before it, and the Chairman could decide the most suitable committee to deal with it. I should like to see all Government orders submitted to the committee which the Chairman or the Clerk considered to be the most suitable to examine them.

I should like to have a list of all Orders submitted to a committee to decide its importance. In Sweden these committees do not meet in public. I do not think it is desirable that they should meet in public. Accepting that idea, what I have in mind is that a civil servant from the Department in charge of a Bill, and who knew most about it, would attend at the committee and could be questioned. It would not be desirable to do that in public. If it was to be done in public it should be done with the Minister. As far as Emergency and General Orders are concerned, if such a scheme was operated they would not go any further than the committee, unless it decided to draw the attention of Parliament or in this case of the Seanad to the matter.

In the case of Bills they would then go to a stage that is virtually our Report Stage. Only amendments proposed by the committee would be taken there, but under certain conditions amendments might be made in public discussion with which the Minister concerned would deal. I am told that that works extremely well in Sweden, that it has a tendency to reduce acute party controversy, and to remove a great deal of the legislation from the realm of party politics. From what I could find out, that system has added to the work of individual members of Parliament, but it has reduced the number of days that members of both Houses sit. In Sweden they are all joint committees. I do not see any reason why we should not set up committees, even though it does not seem desirable to have a joint committee. If there was a chance of examining the wider idea I have in mind, which is related to Senator Duffy's motion, there are some committees, particularly in reference to External Affairs and Finance which would be joint committees for which it would not be desirable for this House to set up a committee of its own. As far as other questions are concerned I do not see why we should not go on alone.

It will be interesting to see how far we can get with a committee of nine. I agree with Senator Hawkins that if it is to do such work properly it will have much to do. I wonder if it can be done well by a small committee. I am told that under the Swedish system, in practice, what happens is that members are re-elected on the same committee and become more or less experts on parliamentary affairs. It is generally recognised that those who are on committees remain there, except when there are changes and an influx after elections.

In the case of detailed Orders which Senator Duffy has in mind, it would be extremely difficult to find a Senator who would have much knowledge of some of them. I do not think Senators look at all the Orders. I can claim that I look at most of them, but that does not apply, for instance to those concerning Córas Iompair Eireann. I have not the diligence of Senator Duffy. I look at most of the Orders but I confess that I have not time to find out what they are all about. One would not know what some of them were about unless one looked up an Act of Parliament. The case put by Senator Duffy and by Senator O'Brien is almost unanswerable, but as to its working, better "wait and see."

I hope if this committee begins to function that Senators will consider whether they should not report back, and suggest a larger committee. I am convinced that if we are going to have as much delegated legislation as we have had we had better give up any idea of democratic control, unless we can find some system of dealing with it.

I differ in one respect from preceding speakers. There seems to be general acceptance of the belief that the amount of delegated legislation we have had during the last few years is something that is inevitable in the future. I do not accept that view. We have had far too much of it. I am convinced that there should not be any delegated legislation in the strict sense of the word. There should, however, be a great deal in the way of delegated administration, and Orders when made should be of an administrative character within the principle set out by a Bill or by legislation. Except in times of emergency, all Orders made by subsidiary bodies, whether by civil servants or C.I.E. or the E.S.B., should be only administrative Orders, made within the principal powers of a Bill which enabled them to do so, and it should be possible to challenge them in court.

I think that to hand over to civil servants or to other bodies the power actually to change the law, taking the word "law" in its more rigid sense, is going too far, and I am not yet convinced that it is necessary. While I agree that the making of a great many Orders will be necessary, I still do not want to be taken as going as far as Senator Duffy, Senator Hayes or Senator Hawkins in saying that the position is necessarily going to stay. I think at the same time that an effort should be made to try and distinguish between an administrative order which is necessary for the carrying out of legislation, and what, in the strict sense of the word should be delegated legislation.

Mr. Bennett

I welcome the motion. I confess to being for a great many years, a believer in the principle of complete freedom for the individual and an opponent of all delegated legislation. I came to recognise, after some period as a member of Parliament, that a certain amount of delegated legislation is necessary. I do not see how we can avoid that. I agree with Senator Douglas that, in late years, we have gone too far altogether in the realm of delegated rules and legislation. In a time of grave emergency there may be a possible excuse for an extension of delegated authority, but I believe that in the emergency we have passed through, we went altogether too far in delegating to the Government the authority of Parliament. A great many people support me in that opinion. We went so far in that direction that many of the citizens of this country came to regard themselves as being absolutely powerless in the face of the orders and regulations that were being constantly issued from the various Government departments.

Senator O'Brien says that there is a distinction between the ideal and the practical. I believed in the practical in my early connection with Parliament, but I came to recognise later that what was practical was not always possible and that the ideals I held originally had to be modified in the course of years. I do not want to enter into the region of politics on this motion but I think the change of Government will act as a safeguard against the grave dangers arising from delegated authority. The Government that we have now is practically a committee in itself, and will be a safeguard against some of the dangers that flow from delegated authority. Nevertheless I think that some such suggestion as that made by Senator Duffy in the motion is necessary if we are to safeguard the deople of the country in the future.

Senator O'Brien said that the rule of law is, possibly, the greatest asset in the possession of the people. I agree, and I think that the greatest enemy to the rule of law is the thing that we are talking about in this motion—the delegation of legislative authority. There is also the question of retrospective legislation which is not dealt with in the motion. I think it was Senator Hayes who suggested that it might come within the province of a committee to examine Bills, and that there is grave danger to the freedom of the individual under delegated authority. There is a graver danger, perhaps, as the people have unfortunately come to recognise in the recent past under retrospective legislation. I would like to see, as was suggested by Senator Hayes and by Senator Douglas, a committee set up to examine Bills. It is possible, if that were done, that it would obviate the dangers arising from delegated authority, whether by rules or by regulations. I would like to see a committee set up that would examine every Bill. Such an examination would help to clarify the position for the public in general. It would enable the public to see the difficulties likely to arise under the proposed legislation. These are not always made obvious from a debate in the House. Practically everything that could be said on behalf of the motion has been said. Very little has been said against it. I am glad that Senator Duffy has brought it forward and that the House appears likely to accept it. I do not think a motion has ever been brought before this House or Parliament that has pleased me more than this one.

Mrs. Concannon

I am not sufficiently well informed on the matters at issue to give a decided opinion for or against the motion. One thing I am afraid of is that Senator Duffy will kill himself, because if we pass the motion the committee will be Senator Duffy. He works so hard and is so precious a member that none of us would like to see him kill himself. I think I know him longer than any other member of the House. I remember him in the old days in Galway and I have been interested in him ever since. In that sense I would be glad if the committee were not set up. There is a difficulty I have in mind which perhaps can be explained.

Section 2 of the motion proposes that the select committee shall have power to require any Government department to submit a memorandum explaining rules, Orders, or regulations which may be under their consideration and to send a representative from the department before the committee as a witness. Apparently, if we pass the motion we give the committee that power, but who gives us the power to give the committee that power? Have we, as a second Chamber, the constitutional right to demand explanations or to ask for information like that from a Government department? It appears to me that Ministers are responsible only to the Dáil. Whether Government departments are in the same position constitutionally, I do not know. It is a question which I would like some one, with a knowledge of constitutional law, to explain. If we pass the motion giving power to the committee to require a Government department to present a memorandum, or to send a representative before it I would like to know have we the power to give such power to the committee?

The motion also proposes that it shall be the duty of the Clerk of the Seanad to provide for the committee clerical or such other assistance and facilities as they may require. Would not the acceptance of that proposal involve the spending of public money? I do not know that we have the power to impose conditions involving the spending of public money. These are some of the difficulties that occur to me.

Mr. S. O'Farrell

Senator Mrs. Concannon has raised two points to which I had intended to draw attention. I am not opposing the motion. It would not matter very much if I did, because it would please Senator Duffy to discover that the smooth and pleasant passage of his omnibus motion through the House obviously had not gone at the same speed as Senator Hayes' earlier luxury car motion, which was whisked through in a couple of minutes like a smuggler crossing the Border with a load of sugar.

I am in favour of the motion, but I wonder if we have power to summon the officials. We should be sure of our power before we try to do so. Though the quorum of the committee is to be nine, I agree with Senator Concannon that there will probably never be more than three. The work will be onerous, but will be valuable in providing information we do not get in the ordinary way—because we do not always look for it and even then cannot discover it when we do look.

This proposed committee will only have power to point out grievances or errors in the future and will have no roving power to go back to Victorian 1870, so all the difficulties and evils Senator Duffy has mentioned as his argument will still remain in force.

He referred to the Local Government Elections Act, 1948, and contrasted the final clause there with the final clause in earlier Acts. The very alteration there was a realisation by the Dáil that this making of orders by Ministers should not be tolerated but should be curbed and the orders made subject to annulment. Having adopted the more democratic principle laid down in this 1948 Act, the Oireachtas is not likely to give any Minister such extensive powers as were given in the past—even in the recent past, when it was necessary to do so.

If we had the power to prevent legislation of the kind Senator Duffy complains of, it might occasionally do harm. He instanced the election in West Donegal. Had there been no power there, it would have been a rather difficult situation. Although it is necessary that the powers of officials and of Ministers should be curbed and they should not have power to overrule Parliament, it is not always desirable that their hands should be tied behind their backs, when a Bill is passed. A power to annul an Order within a short specified time is a general safeguard.

Mr. Duffy

I feel deeply grateful to the members of both sides of the House for the attitude they have adopted towards this motion. If it had to be carried by a narrow majority I would not hold out a lot of hope for its success, but the fact that it has received support from all sections indicates that Senators realise there is something which needs to be done, and which this resolution will enable them to do, to protect the authority of our parliamentary institutions.

I agree very largely with Senator Douglas, especially in relation to the need for other committees to deal with such matters as External Affairs, Agriculture, and perhaps military affairs. If it were possible it would be well to induce both Houses to set up such joint committees. However, I am confining myself here to a very narrow field. I was not too sanguine when putting down the motion that I would secure approval for it even in this narrow field. If other members want to embark on a wider field of activities, such as outlined by Senator Douglas, I will be glad to give them what support I can.

Senator Hawkins emphasised the need of maintaining the right of the individual Senator unimpaired to raise in the House any matter he wants to raise. Surely, that right must continue? The Senator will observe that this motion merely sets up a committee to report to the House. It does not empower the committee to put down a motion at all. There is nothing in the Standing Orders that will enable the committee to do anything but report to the House on the lines I have mentioned. When these reports are made, Senator Hawkins on one side or Senator Hayes on the other, may see fit to call for the annulment of a regulation. They are free to do it if they wish, even before the committee examines the regulation or reports. There is nothing in the motion which would impair the right of an individual Senator to discharge his duties towards this House.

On paragraph 2(c) of the motion questions were raised by Senator Hayes and Senator Mrs. Concannon. Senator Hayes asked whether I was prepared to say that there was no intention of requiring a Government department to send a witness to appear before the committee. Now I want to make it clear that what I had in mind was that the committee should have power to require a Government department, when questioned regarding the structure of a regulation or Order or draft, to send a memorandum to the committee. My interpretation of the use of the word “require” is this: the committee through its clerk or chairman would send a note to the Government department to say: “We have been looking over regulation No. 244 and are doubtful, according to present advice, whether you had power to make it. Would you send us a note showing the authority which you say you have for making it.” It is merely a method of expressing a request and it is intended, at least so far as I am concerned, that the department itself would have the option of sending a person such as a civil servant to the committee to discuss the matter rather than sending a memorandum. They may say it is far better to send up the principal officer of the department who will tell you all about it. That is the kind of procedure that is likely to be followed. If this committee were to be set up for the purposes of finding cause for quarrels with Government departments it would not function at all. It will only function satisfactorily from the point of view of the legislature, if it works in the closest co-operation with Government departments and with the civil servants responsible for the drafting of regulations.

The point made by Senator Mrs. Concannon rests on a different basis. I think she questions the constitutional right of the Seanad to authorise any such committee to request or require a Government department to furnish them with information. I think she is entirely wrong. I would refer the Seanad to Article 52 of the Standing Orders of Seanad Eireann relative to public business. I am referring to the current issue. The clause which deals with select committee provides that the Seanad may, on motion made, appoint a select committee to consider and take evidence on any Bill or matter and to report its opinion for the information and assistance of the Seanad. Not merely is the select committee empowered to ask the Government department for a memorandum: it is empowered to call witnesses, to swear them and to take their evidence on oath. There can be no doubt, I think, in the mind of any member of this House that the Seanad has power to appoint this committee and to confer on it all the power set out in this resolution. I hope Senator Mrs. Concannon will accept this as authoritative. I can assure her that I made some inquiries here before putting down this motion as to whether we could exercise all these powers and I am assured we can. I may have a difference with other members with regard to our powers under the Constitution—Mrs. Concannon may hold one view while I adhere to another. In a case of this kind there is nobody to decide between Mrs. Concannon and myself except the Supreme Court.

Mr. Seamus O'Farrell

May I ask Senator Duffy to deal with the point I raised. It is not a question of what he thinks or what Senator Mrs. Concannon thinks or what he thinks and what I think but whether the Government and the Government departments think we have this right.

Mr. M. Hayes

What right?

Mr. Seamus O'Farrell

The right to call evidence on oath.

Mr. Hayes

The motion does not propose to compel attendance on anyone.

Mr. Duffy

That is so. It merely gives the committee power to require the Government Department to send a memorandum. I do not propose to delay arguing on these lines but I would like to believe that every member of this House will insist on the House exercising all the powers which it has conferred on itself in its own Standing Order.

The question of tabling regulations was referred to by Senator Hayes and Senator O'Brien; Senator O'Farrell queried whether we could undo the mistakes of the past, that is, if there were mistakes. The duty of the committee under this motion will be to inquire into the regulations laid on the Table and if an inquiry is not made within 21 days after a regulation is laid the power to do anything about it will have expired. There are only 21 days in which the House can do anything practical in regard to regulations which it dislikes. As I have said before, the Statutory Instruments Act requires that Orders made subsequent to the 1st January, 1948, be printed within 7 days and copies deposited in certain libraries. Regulations which were made under the Health Act in May, 1948, were tabled in the Seanad on the 10th June, 1948, a delay of 28 days. A regulation under the Shops (Hours Trading) Act, made on the 13th April, was not tabled, I think, for 30 days and regulations under the County Management (Reservation) Order, made on the 30th January, 1948, were not tabled until the 5th May, 1948. The Unemployment Assurance Regulations (Emergency Powers) Order, made to deprive certain people of the right to benefit, 5 or 6 years ago, were not tabled at all until the Order had expired. An Order made under the Statistics Act on the 13th February, 1948, was not tabled until 4th May, 1948. Section 70 of the Statistics Act says that this Order should be laid on the Table "as soon as may be.""As soon as may be" here means well over four months after the Order was made, notwithstanding the obligation imposed by the Statutory Instruments Act to print the Order within seven days. I mention these things not merely to complain, but to show that, if the committee were in existence and became aware of this lapse and reported to the House, I think the House would be bound to express some view on the matter, a view which probably would ensure that, in future, these departments would see to it that their Orders were tabled promptly.

There is another matter dealt with by regulations and in regard to the validity of these regulations, I have some doubt. I advert now to Article 15 of the Constitution which says:

The sole and exclusive power of making laws is hereby vested in the Oireachtas.

Then, I find Government departments making all kinds of instruments which may be regarded as laws. On 15th June, we had regulations made by the Department of Finance increasing the inland postage rates. They are probably entitled to do that.

Mr. M. Hayes

They are.

Mr. Duffy

The Minister for Local Government in 1924 made an Order increasing by 50 per cent. the costs payable under the Labourers Acts. Regulations under the Road Traffic Act, 1933, permitted insurance companies to charge increased fees for a certificate of cover. These are regulations imposing taxation; in other words, the civil servants making these regulations are claiming to exercise powers which are denied to this House. Although one of the Houses of the Oireachtas, the Seanad, may not impose a charge a civil servant sitting in the Custom House may. Or he may make an Order enabling an insurance company to impose a charge. That, I think, shows the need there is for some method of having these regulations examined and, where necessary, reported to the House.

I do not think the task would be as laborious as Senator Mrs. Concannon has suggested. Between 1st January, 1948 and 30th June, 1948, the first six months of this year, the number of documents laid on the table—I use the word "documents" advisedly—was 341 and I calculate that, of that number, less than 100 were capable of being annulled; these documents include such things as the report made by the sheriffs in respect of the election of 147 Deputies, the report of the Department of Agriculture, a report on fisheries and a number of informative documents which are not capable of being annulled at all. On the British basis that only 33 orders were reported on out of 947, we cannot anticipate that the number of documents requiring special attention in this Chamber would exceed five, six or seven in the half-year.

Mr. Hearne

Will they not have to consider them all?

Mr. Duffy

Under the resolution, they are called upon to report, where they think fit, in respect of documents capable of being annulled.

Mr. M. Hayes

The number would be much less than 33 here, because the number of Orders made here is smaller than the number made in England.

Mr. Duffy

Yes. We tabled 341 documents in the half-year and the British Committee examined 947 in a year, out of a probable 4,000 or 5,000. I should say that, in 1940, 1941 and 1942, we made about 1,500 Orders a year, but that number has decreased, and we are making less than 500 Orders at the moment. Senator Hayes goes further and asks whether the committee would be precluded from examining statutory instruments which were not capable of being annulled. I do not think the House would ask the committee to refrain from examining any Order or regulation they thought it desirable to have examined, but, so far as the resolution is concerned, it does not impose upon the committee an obligation to examine any document, except those which are capable of being annulled. If the committee is working satisfactorily and if it is found desirable to draw the attention of the House to other documents, I have no doubt that the House will suitably amend its instruction to the committee at a later date; but at the moment the intention is that the committee will be required and have power to report to the House on every document in respect of which the House is entitled to take some positive action.

Senator Mrs. Concannon also raised the question of the power to spend money in furtherance of the proposal in paragraph (4) of the motion, "And it shall be the duty of the Clerk of Seanad Éireann to provide for the committee clerical or such other assistance and facilities as they may require." As is well known, this House sets up committees from time to time. It is authorised to set up select committees and other special committees, and the facilities which a committee requires in the way of office and staff are always provided from the resources of the Seanad itself. If I may say so, I should add that, before putting in the clause to which the Senator referred, I made some inquiries as to whether it is permissible and possible to provide clerical assistance, and I was assured that that will be done, if the Seanad thinks fit to adopt the resolution.

With regard to the point made by Senator Séamus O'Farrell, when he referred to one of the provisions of the Local Elections Act, I think he misunderstands the point I made. I was referring to what is commonly known as the Henry VIII clause. I do not want to go deeply into it, but it is roughly a clause which was inserted in many of the Local Government Acts during the past few years, authorising the Minister to modify or to adapt any law he finds in force which he thinks is in conflict with the Bill in which this clause is inserted. The sub-section requiring the Minister for Local Government to have tabled the Orders made under that section, and authorising either House of the Oireachtas to annul them, is not a new invention. That sub-section, providing for the Orders being tabled and for their annulment in suitable cases, has been in most of the Local Government Acts from 1898 to the present day. It was omitted in one or two cases. It was omitted in the case of the Mental Treatment Act, 1945, and members of the Seanad who were here then will remember that we had a stiff fight with the then Parliamentary Secretary on that very issue. However, his will prevailed and no provision was made in that Act for the tabling of regulations or for their annulment, but, as far as I can remember, during the last five years, that is the only statute in which this clause is inserted that did not have the additional sub-section which now appears in the Local Elections Act, 1948.

I would like to conclude by expressing my deep appreciation to the members of this House for the patient manner in which they have listened to my efforts to propound these proposals, and the friendly welcome which they have extended to this resolution.

Motion put and agreed to.

Leas-Cathaoirleach

It is understood that Motion No. 6 will not be taken until the next meeting. Perhaps therefore the adjournment of the House until Wednesday next might now be moved.

The Seanad adjourned at 9.30 p.m., until 3 p.m. on Wednesday, 4th August.