Public Business. - Houses of the Oireachtas (Laying of Documents) Bill, 1965: Committee Stage.

Question proposed: "That section 1 stand part of the Bill".

I should just like to point out that if the Minister is disposed to accept the amendment which I put down to section 3 it would be necessary, on Report Stage, to amend section 1.

Perhaps we can deal with that when we come to the Senator's amendment.

Question put and agreed to.
SECTION 2.

I move amendment No. 1:

In line 23 to delete "be construed".

On the Second Stage of the Bill I made reference to this particular matter. I must admit that I may be arguing slightly against myself at the moment in one way. I thought the ease of reading this particular Bill was not the first consideration. The first consideration was that it should say what it meant.

Perhaps before we proceed further with this matter, we can take amendments Nos. 1, 2 and 3 together.

Yes; they are cognate. However, as I trust it may be possible to persuade the Minister to amend the Bill in another way, I felt I should also bring up the matter of the clarification of section 2 by a slight change of wording. I do not know that I need to argue very much at the moment. The point is that my suggested way of wording the section would make it easier to read: it does not make any difference at all to the sense of it. I would not move this amendment only that I trust the Bill may be amended in another way and, when that is being done, we might as well tidy up section 2 as well.

While I appreciate the desire of the Senator to amend the section in order to make it more easily read, I do not think it is so important that we should amend it as he suggests. In fact, I do not think it has any real effect. I certainly admire the Senator's interest in this Bill. By reason of his chairmanship of the Select Committee on Statutory Instruments, he would be expected to have a special interest in it and I also admire his clarity of thought and diction but, when it comes to draftsmanship, I prefer to put myself in the hands of the Parliamentary draftsman in this respect. As the Senator admits himself, it does not alter the substance or sense of the section and, while there may be something in his contention that it might make it more easily read, that is a matter of opinion too. In so far as it does nothing for the Bill except, in the opinion of Senator Sheldon, to make it sound sweeter in his ears, I do not think there is any case for the amendment.

I have not quite the same faith in Parliamentary draftsmen as the Minister. However, I may be able to prove that later on.

Amendment, by leave, withdrawn.
Amendments Nos. 2 and 3 not moved.
Section 2 agreed to.
SECTION 3.

I move amendment No. 4:

In subsection (2) (a), to delete subparagraph (ii).

It is clear from the way in which subsection (2), paragraph (a) of this Bill is drafted that there is a clear distinction between, on the one hand, any statute for the government of a university or constituent College thereof and, on the other hand, all other types of Statutory Instruments which are the subject of this Bill. I think this is right and proper. There is a very clear distinction between the effect of this Bill on the statutes of universities or Colleges and its effect on any other type of Statutory Instrument. The principal difference is that in the case of an ordinary Statutory Instrument, as soon as the instrument is signed, anybody is entitled to act under that instrument, is empowered to carry on even while the instrument lies on the Tables of the Houses of the Oireachtas. If it should happen that the Statutory Instrument is subsequently annulled, disallowed, in whole or in part, then the position is that nothing which has been done up to that date is affected by the annulment. The only effect is on what can be done from that time forth.

On the other hand, in the case of the university statutes it is quite clear from the wording of the Irish Universities Act, 1908, that no action can be taken under a university statute until the time has elapsed and the appropriate section of the 1908 Act, section 5, says that the annulment of a university statute is without prejudice to any subsequent statute. There is absolutely no reference to its being without prejudice to anything that may have been done under the statute. Therefore, the very necessary time which elapses in order to allow Parliament to review a Statutory Instrument has a very different effect in the case of university and college statutes than it has in regard to other Statutory Instruments.

In the case of an ordinary Statutory Instrument there is no need for any delay in carrying out the intention of the instrument. On the other hand, in the case of a university statute there must be a delay and the statute cannot be acted upon until such time has elapsed. This has represented in the past and it represents at present a very great inconvenience and disadvantage for the administration of the university. In this connection I think it is well that we should be careful as to the advisability of in any way imposing further inconvenience and further disadvantage which might hamper the university.

My submission is that there is adequate and more than adequate protection for review under the law as it stands and that, even though the effect of including university statutes in this Bill might be slight, no further burden however slight should be placed upon the universities and the colleges in this regard. As we know, the Commission on Higher Education is in being at the moment. As least, we presume it is still in being though it is not showing externally very many signs of life.

It is in suspended animation.

When the Commission reports it is almost certain that there will be legislation arising from its deliberations. I propose in this amendment that we should leave the position in regard to university and College statutes at least as it is and not make it worse, pending consideration of the whole matter when we come to deal with the legislation arising from the Report of the Commission on Higher Education.

I consider that the safeguards which are already there are adequate and more than adequate for this day and age. The Irish Universities Act was passed in 1908. Under that Act it was necessary that any university statute which it made would have to be subject to two limitations. The first was that it had to be laid for 40 days exclusive of any period of prorogation before both Houses of Parliament during which time either House could present an address praying His Majesty to disallow the statute. In addition, it was necessary that notice of the statute should be given in the Dublin Gazette and anyone affected was entitled to present an address to the Lord Lieutenant who was bound to refer the matter to a body known as the Irish Universities Committee and, having heard their report, the Lord Lieutenant could disallow the statute.

Now in the course of adaptation, university statutes are still presented to the Houses of the Oireachtas in accordance with the first of those limitations but the limitation is even stricter in the case of university statutes than in the case of other Statutory Instruments. One of the main reasons why this Bill was introduced was that the old provision of 40 days—less any period of prorogation—tended in the absence of any prorogation or anything that exactly corresponded to it to mean 40 days whether or not the Houses were sitting. Indeed, it is probable that if it were not for these particular circumstances arising this Bill might not have been brought in. That does not apply to the university statutes because by statutory order introduced in 1942 the university statutes are subject to the limitation that the 40 days—exclusive of prorogation—mentioned in the 1908 Act is interpreted in the case of the universities as 40 days minus any period of more than 21 days in which Dáil Éireann has not sat. Therefore, the limitating period existing here in regard to the universities is quite severe.

The difficulty that there was nothing to correspond with prorogation has been overcome by the fact that the period of non-sitting for more than 21 days is now interpreted as corresponding to prorogation and, accordingly, the present position is precisely the position intended in 1908. There has been no loosening of Parliamentary control due to the difficulties of adaptation because substantial adaptation has been made in regard to the universities by the Statutory Order of 1942. I am not quite sure if the other limitation still exists and I should like to ask the Minister if he knows whether such a body as the Irish Universities Committee exist today; if it does exist in what way it has been set up; and if it does not exist where is the section stating that it had been repealed; and if it has not been repealed why this body which is a mandatory body under the 1908 Act has not been set up.

I have talked a great deal about university statutes. I think I should indicate for the benefit of Members of the House who might not be aware of what precisely is involved in a university statute. I have with me two statutes which I took at random from the Library to indicate what the statutes are which are subject to such close control. The first one I took is a statute for my own college. It has several chapters and 90 per cent of them deal with appointments. There is, for example, a chapter setting up a lectureship in Medicine at £1,250 a year increasing by annual increments of £37 10s. to a maximum of £1,400. The position is that if University College, Cork wishes to set up such a lectureship it has to get the permission of the National University of Ireland. When that has been done, it is laid on the Table of the Houses. University College, Cork, can do nothing in regard to the final appointment and the National University of Ireland can do nothing in regard to the final appointment until a certain statutory period has elapsed. This is a grave disadvantage at this time when there are difficulties in recruiting staff. This may have been a requirement which did not interfere with the working of the universities in 1908 but it certainly does interfere with them severely now.

The position is that if a new job is to be created, if the terms of appointment of the previous job are to be altered by one or one title a procedure must be gone through which is liable to take 12 months in all. This, I think, is completely out of harmony with what should be the freedom of the universities of the present time in order to make their own appointments and to make them swiftly. At the time that the Act was passed in 1908, the provisions which now apply to the National University applied equally to the University of Dublin and applied to Queen's University, Belfast, and to most of the universities in Britain. In the case of the University of Dublin, the relief from the necessity of having to ask the King to legislate for it was granted by the King's letter of 1911 and the position is that Trinity College, Dublin, and the University of Dublin can now legislate for themselves since 1911. The position is that the power of Queen's University, Belfast, to legislate for itself has now been given to the Senate of the University for many years past.

I do not wish to make a case here and now for the complete abolition of the laying of university statutes before the Houses of the Oireachtas because it would not be appropriate to this Bill and also because I do not think we should anticipate the Commission on Higher Education in this regard but I do think that nothing whatsoever should be done to worsen the position of university Colleges. Accordingly, I am proposing that all reference to university statutes shall be omitted from this Bill.

If it happens, as a result of the Report of the Commission on Higher Education, that the Government consider that university statutes should be dealt with in the same way as other Statutory Instruments in regard to time and still be viewed differently in regard to the power to act under them, then the Government could easily under the legislation which would arise, apply this Bill to university statutes. However, pending that time, I do not think that this Bill should be applied to university statutes and nothing should be done to hamper the National University of Ireland and its constituent Colleges on matters which are essentially domestic affairs of the university.

I should like to support Senator Dooge in this, particularly from the point of view of the absolute necessity these days of being able to act as readily as possible in the making of appointments. We in this country are already trying to make appointments in adverse conditions. We cannot offer as large salaries as are offered in England and very often we cannot offer as good conditions for people to work in. This is particularly true in the physical sciences and in some of the professions. Inevitably, in these circumstances, when a post has to be filled, we have to shop around to find somebody who would be suitable to take this post and whom we might be able to persuade to come. Having done all that, if we must now wait a matter of even days, sometimes, you find that somebody has come in and made a better offer and you have to start all over again. If you have to wait for weeks, it becomes inevitable and I should hate to think of what the position would be if you had to wait for months. Therefore, I support Senator Dooge in trying to make the operation of any university as free as possible from all such restrictions but in this particular case I see the point very clearly in relation to the circumstances he has mentioned.

I wish to support this amendment very strongly and I appeal to the Minister to act upon it because it is a most reasonable provision and, as Senator Jessop has put it so well, it is absolutely necessary in the modern day to enable us to make appointments or at least not to encumber the making of appointments still further.

At the moment, we are saddled with an appointments system that is far too cumbersome and too time-consuming for this modern day and age. We hope and expect that the Commission on Higher Education will succeed in modernising that but, in the meantime, I appeal to the Minister and to the Government not to make a difficult case more difficult still. Just about the scarcest commodity in the modern world today is highly trained scientific talent. In the university, we are competing on very unfavourable terms with outside universities, especially in England, America and even Australia. In fact, I might give a personal example to the Minister: he knows our own college quite well. I can tell him that, out of a staff of four who are in one department at the moment, no less than two have been taken away, bought away, by other institutions— one institution in Australia and another somewhat nearer home. However, that is the situation.

I think the case is obvious. There is no need to delay the House in regard to it. I appeal to the Minister, as a first step, to remove this. University College, Dublin, have been criticised for bypassing this whole procedure by the extensive appointment of college lecturers and assistant college lecturers. I have the greatest sympathy with them in their dilemma. I think they acted wisely in all the circumstances and the Government acted wisely also by, in effect, giving that power, which was not in the Charter, to the university to continue with those appointments pending the report of the Commission on Higher Education. Therefore, I am asking the Minister not to make it more difficult for us in the smaller colleges who are fighting a wearying battle to try to maintain standards and to try to attract some of our good students back and ensure that they are held for the country and the college. Undoubtedly, the case is evident. I rely on the good sense and the commonsense approach of the Minister to accept this amendment.

I have a great deal of sympathy with the case made but I do not see what it has to do with the point. I should have thought that removing the reference to the universities would not have made the slightest difference to the present position. I understood from Senator Dooge that the difficulty was the present position. This is about four weeks. It comes into operation only if the four sitting week is longer than the period obtaining. As I understand it, there will be a shorter period. I think it is inevitable that it should be shorter in the present position. While it is useful that the opinion should be voiced here, I cannot see that the amendment will help matters.

There are two possibilities—one, that the four week period never governs and the other, that it does at some time or other govern. If the four weeks will never govern, then there is no point in applying the Bill to the universities since it is completely unnecessary. If there is the slightest possibility that the four weeks should ever govern, I think it is appropriate to make the case that this further burden should not be added.

It is not my desire in any way to hamper the administration of the university, particularly in relation to appointments to be made to professorships or lectureships. It ought to be possible for universities so to arrange their appointments as to ensure that they are made at a time that the Bill, as we now propose it as far as the laying of documents is concerned, would have no adverse effect on the taking up of appointments by whoever would be appointed. I shall not go into the merits of——

May I interrupt for a moment, please? The Minister mentioned the taking up of appointments. That is not relevant. The appointment cannot be made until the statutory time has elapsed. They cannot make the final appointment.

It refers to the ultimate taking up of appointments. The making of an appointment obviously refers to the engaging of a professor or a lecturer. I shall not go into the merits of the system adopted, to use no more derogatory or laudatory expression, in the appointment of college lecturers over a period of years in University College, Dublin. As a result of the appointment of a Visitor there, certain objections were made and ultimately the matter had to be brought to the Oireachtas. The Government did decide to give whatever authority was required for the continuation of the appointment made in this respect.

I think the House will realise that more and more university appointments are becoming matters that the taxpayer will have more and more regard to. When an appointment is made in the public service provision has to be made for that appointment by way of passing a particular vote and any appointment made is subject to questioning and review, if necessary, by the Houses of the Oireachtas. That is only by the way. Nevertheless, the fact remains that by reason of the laying procedure the House will have some say in these appointments and I think that it should have. As Senator Sheldon has pointed out, there is a laying procedure already, and this procedure which we now propose to adopt in relation to university statutes in most circumstances, except in the case where appointments are sought to be made towards the end of a university or a Parliamentary session, can be made and taken up more expeditiously.

In my submission to exclude the universities or university statutes from the scope of this Bill would be putting the universities in a special position. Speaking of a special position, I would like to refer to the suggestion made by Senator Dooge that universities are in a unique position in this respect in that any of the statutes made under the 1908 Act are inoperative until the laying period has passed. They are not unique in this respect. As I have said, if there was some difficulty about the laying procedure it is a matter that could be settled in amendment to the 1908 Act. I do not think that Senator Dooge adverted to that suggestion here today, but he was kind enough to let me have a short memorandum on the reasons for putting down this amendment and he referred to it in that. He said that any amendment might be held to be ultra vires the 1908 Act. An Act, of course, could be ultra vires the Constitution but I do not think that one Act can be ultra vires another since it is within the power of Parliament to change an Act at any time as long as it is not ultra vires the Constitution of the country.

On the point he made that university statutes were in a unique position in that they could not take effect until a long period had passed, there are other instruments made, for example, under the General Prisons Act, 1877 which cannot come into operation until a long period has passed.

That is an appropriate comparison.

Probably lunatic asylums are in it, too.

I am surprised that erudite people such as university professors and distinguished barristers should be making smart cracks and points out of an argument that university statutes are not in a unique position in this respect. I am pointing out examples to prove that that they are not unique. There are other cases, too, where statutory instruments must be laid in draft form before the Oireachtas before coming into effect. What the amendment seeks to do would put them in a completely unique position. We propose to enact the Bill here, as Senator Sheldon has pointed out, for the convenience of the Houses of the Oireachtas and the Members elected to them. I do not think it is creating any great inconvenience for the universities to oblige them to conform to the same procedure as far as the laying of instruments is concerned as people who are bound by other Acts of Parliament. For that reason and others I have mentioned, I cannot accept the amendment.

I must confess that I am somewhat surprised at the line the Minister adopts in this case. In the legislation we enact in modern times we ought to take a modern approach to this situation. Two kinds of statutory orders are made. First, you have the kind of regulations made in draft—you find them in the Social Welfare Act, 1952—that will not come into operation until a resolution authorising the making of them is passed by each House of the Oireachtas. That is a speedy enough procedure and does not involve any great delay. It can go through both Houses in one week if necessary. The other is the ordinary kind of regulation made that takes effect immediately and there is an indemnity, contained in the section authorising the making of the regulations and obliging them to be laid before each House, indemnifying in advance any things done in pursuance of the regulations.

Here we are dealing with what ought to be a matter of some concern to the Government—the modernisation and up-to-dateness of the universities. I am quite certain that when the 1908 Act was being drawn up there would not have been great concern in the minds of the Ministers who drew it up for the British Government and of the Parliamentary draftsman as to what ought to be done. There would not be a great concern about the welfare of the Irish people. I should think that that Act was reluctantly drawn up by the British Government at that time. Be that as it may, it is clear that it is out of date because the committee that Senator Dooge referred to, to which certain things are to be submitted in the event of disputes about the statutes—the Lord Lieutenant and the Privy Council —no longer exists. As far as I know, there never has been any adaptation of this particular Act, when powers were taken in the early days of the establishment of this State for adapting enactments, to provide for the implementation of this Act by an Irish Government.

When one looks at that section it is quite clear that the 1908 Act is long since out of date, and we ought not to be tied to precedents of that kind and precedents such as the General Prisons Act, 1877. I must say that I thought it was with a sense of humour that the Minister introduced that particular comparison, but apparently that was not so.

I have others and I did not single out this particular one.

I am sure that the Minister will pardon us if when talking about universities his first comparison is one relating to general prisons. The universities, indeed, are in a prison of their own in the statutes and one might quite properly say that they are bound hand and foot by this antediluvian form of legislation. The Minister says that the universities are in a special position and the taxpayer is interested in what is going on in appointments being made there.

One would imagine that the Minister had never heard of the Act establishing Córas Iompair Éireann, or the Acts setting up Bord Fáilte, the ESB and every one of the other semi-State bodies given block grants every year and power to make any appointments they like. When a Minister is asked in the Dáil a question in relation to appointments made by one of them he will declaim in a lordly fashion: "This is a matter of day to day management and I have no concern in the matter". We cannot trust the Irish universities in 1966 to do the same kind of things which an enlightened Minister for Industry and Commerce permitted the ESB to do in 1927 and which subsequent Ministers and statutes have enabled other State bodies to do. The Minister says that this is an excuse for keeping the universities tied hand and foot. That does not seem to me to denote a progressive outlook in relation to education or anything else. It seems that this amendment is quite well justified, especially having regard to other much quicker procedures which are not named by the Minister.

Queen's University, Belfast, has had this restriction long since alleviated, if my information is correct. I do not think Trinity College suffers from that kind of restriction. That was lifted some time in the 1900s. That is a much more apt comparison than the General Prisons Act of 1877.

It never struck me that this amendment could give rise to the kind of attitude adopted by the Minister. First of all, I was slightly horrified by what he said at the beginning. I was unable to make head or tail of it. What he seemed to be hinting at was that the universities can make appointments without consultations. The Minister seems to forget that a post cannot be filled until it is created and it cannot be created until it is laid on the Table of the House. I do not know what the Minister had in mind, whether it was that an illegality could be perpetrated. He referred to what happened in University College, Dublin, as regards college lectureships but the account he gave was singularly incomplete.

He failed to refer to the fact that legislation was introduced by the Government to deal with the situation and was then allowed to lapse by the failure of the Government and the Minister, the Bill having been put through the Dáil and the Seanad, to implement their own Act. The Minister then told University College that it did not really matter, that they could go ahead and make the appointments, thereby making nonsense of the Act. As a result, there is complete confusion in the university as regards appointments now. That was an incompetent and misleading action.

He then went on with the horrifying statement that because of the assistance given to the university, the Dáil and Seanad should have an interest in the appointments and that the freedom in regard to the universities, which is a principle of university affairs and life, acknowledged in the case of Dublin University in 1911 by his Majesty, George the Fifth, cannot 55 years later be given to the National University of Ireland.

This is a horrifying statement. I do not believe the Minister gave it a lot of thought. I should hope it is not the considered opinion of the Government and I think, on reflection, the Minister might perhaps be prepared to say that he did not intend to go so far.

Or blame us for being cynical.

That we should react cynically in regard to the analogy of prisons in a manner in which we would not react to any other analogy is not surprising. This amendment is designed not to worsen an absurd position in the universities. You cannot create a position or fill it without going through the enormously complicated procedure introduced by the British Government 58 years ago in order to prevent, as some ill-disposed members of the British Parliament felt, appointments being made here in an unsuitable manner. They had in mind that the Irish could not be trusted. While it is not unreasonable that that attitude might have prevailed in a British Bill in 1908, that it should be endorsed by a Minister here in 1966——

The year of the revolution.

——is something completely out of line and I hope, that on reflection, the Minister will withdraw it. It is something which will give rise to indignation on the part of those associated with the universities.

I hope we can now move away from this matter to consider on its merits the amendment which is designed simply not to worsen an intolerable position created by a combination of ill-disposed attitudes of a British Parliament in 1908 and an act of a Minister two or three years ago. The position is bad enough as it is but let us not make it worse when we are on the eve of reforming the whole system with a view to modernising and devising a more suitable and appropriate method of appointment, following on the report of the Committee which has been in existence for a number of years, the report which has been promised for later this year.

As I understand it, a case is being made by those supporting the amendment for excluding universities from the procedure which must be adopted by other bodies. The case has been made that CIE, Bord na Móna and other semi-State bodies are not subject to the type of restriction contained in this Bill. One of the things which most Members of this House will agree with is that the State and semi-State bodies, over the years, had too much freedom with regard to appointments and their mode of conduct.

That is a queer view for people who advocate rationalisation to take.

I believe, and the Labour Party have so maintained in the Dáil, that semi-State bodies should be more and more under the control of the Oireachtas.

You do not trust public enterprise.

We believe that the people who are elected to both Houses should have a say, on behalf of the public, as to how public enterprise is run. After all, the public are paying and surely they are entitled to a say, through their elected representatives, as to the conduct on a broad basis of the particular companies with regard to policy and so on.

Let us take another example. The voluntary hospitals over the years adopted the attitude that they should be free from any supervision or control by public representatives, although, in fact, a large proportion of their revenue comes from the public purse. When the public purse is paying for the debts of those groups, I maintain that we should have a right to intervene. Various Ministers have, in recent years, realised that it is essential to intervene where public moneys are concerned.

The case has also been made that the measure, as it stands, will hold up the modernisation and the streamlining of our universities. I wonder will it? I have a recollection when I was a Member of the other House—if necessary, I will get the documents now in the Library—of dealing in great detail with the visitors report on UCD. In that report, if the Senators recall, we had the actions of people who were responsible to nobody and were it not for the fact that a number of alert Deputies read that report, none of the actions which had been carried out would have come to light.

I do not intend to dwell at length on what took place but I am satisfied that some provision is necessary to ensure that this House and the Dáil will have an opportunity of observing for a period what is in the minds of the authorities. I think that is what the Bill amounts to. I do not accept the idea that the universities should be completely exempt from supervision by this House. I do not think it is taking away from their autonomy to have this limited observation carried out on their activities.

Let me put this very important point. The public are paying for the universities: they are paying the lecturers and the professors; they are paying for the running of the universities to a great extent. Is it unreasonable to suggest that both Houses of the Oireachtas should be entitled to listen in and observe in the matter of appointments created or filled? I do not see anything outrageous in the suggestion in this Bill at all. I support the Minister's view as far as the amendment is concerned.

I admit that I have, perhaps, used rather loosely the phrases "university appointments" and "creation of posts". I do not think that is terribly important in the context of what we are saying. If I used the words "university appointments" when I should have used the words "creation of posts", then I am guilty of imprecision. As I said already, at the present time there is a procedure whereby, under the 1908 Act, the statutes made by a university must be laid before the Houses. That was amended, as Senator Dooge has pointed out, by a Statutory Instrument in 1941, I think.

Therefore, they are obliged to lay their Statutory Instruments—and these university statutes are no more than Statutory Instruments—and care was taken in the drafting of this Bill to point that out. But they are Statutory Instruments and are laid before the Houses already. What I am saying is that there are other Statutory Instruments which cannot take effect until, and unless, they have lain their statutory period before the Houses of the Oireachtas. University professors are noted for scientific argument, and I was answering the point made by Senator Dooge when he suggested that universities were unique in so far as their statutes could not take effect until a long time had passed. That was why I referred to the Act of 1908, and there were other Acts as well to which I could have referred. However, I think I have made it sufficiently clear that they are not unique in that respect. The purpose of this Bill is to simplify and clarify the procedure whereby certain instruments made under existing Acts of Parliament must be laid before Houses.

May I ask the Minister why, if they are not unique in some respect, there is a special clause here?

Because there is a definition—I think Senator Sheehy Skeffington drew attention to it—of "statute" in the first section as:

an Act of the Oireachtas,

an Act of the Oireachtas of Saorstát Éireann,

an Act of the Parliament of the former United Kingdom of Great Britain and Ireland, or

an Act of a Parliament sitting in Ireland at any time before the coming into force of the Union with Ireland Act, 1800.

—in effect, all Acts passed by Parliament which are still in force in Ireland. But there are also things called statutes which are passed by the University Senate, or by whatever body is in authority to do so under the Irish Universities Act of 1908. These are statutes so named but they are not statutes, as we understand them. They are Statutory Instruments made by the appropriate authorities in the universities which cannot have effect under the 1908 Act until the statutory period for laying on the Tables of the Houses has passed without objection. That is the reason they are specifically mentioned, but, in any event, I think the main point was that the 1908 Act was passed in times when we had not our own Government, when alien rule may not have been sufficiently well disposed to our institutions to give them that kind of freedom of action we would like them to have. That being so, I am all in favour of amending the 1908 Act in accordance with our present conditions and our present-day requirements. As long as the Act is in force and until such time as it has been amended, then I think we ought to apply the same obligations made under that Act as any instrument made under any other Act.

But it did not apply to Trinity College.

I am very disappointed by the appreciation and knowledge of the university which has been shown here, particularly by Senator McQuillan and, to a lesser extent, by the Minister. The discussion has centred on the universities. I understand the universities, in our context here, to mean both Trinity College, Dublin, and the National University. This does not apply to Trinity College, Dublin. Therefore, it applies only to the National University.

Therefore, any reference to the universities must mean the National University.

We are denying to the National University something which was given to Trinity College, Dublin, and to Queen's University in Belfast over 50 years ago. Secondly, we are denying it not to the National University as a whole so much as the administration of its two small parts —Galway and Cork—because already the Government have made a special exception for University College, Dublin, which enabled them to speed up the matter of appointments. Even if the legislation has lapsed, it is still accepted that University College, Dublin, are proceeding under that Act but we in the other universities cannot and dare not even use the terminology of that Act. This makes our position far worse compared with the largest university in the country.

There has been loose talk on the question of what is in the statutes. The statutes are not appointments. All they set out is that a new office is being created, or a professorship—the most recent one was a professorship of Medieval History, the one which Telefís Bhlá Cliath did not hear about yet but which was created just a year ago, or that a change may be made in the conditions of the holding of an office, but that is all. The appointment is made by the Senate of the National University. There is no question of either the Dáil or Seanad having a say in such an appointment. On the other hand, the position of the universities is unique in that there is so much public representation at every level, both in the drafting of those statutes and in the making of the subsequent appointment. In the drafting of the statutes, the statute power rests in the Finance Committee of the College and the Chairman of that Finance Committee is, traditionally, a Government nominee on the Governing Body of the College. It is so in Cork, anyway.

More than Cork is involved.

Then the Governing Body itself has representatives from either the county councils or, in the case of UCD, the general manager of the county councils. At the same time, the Senate of the University is enacting concurrent legislation——

Did the Senator say the county councils have a say in regard to UCD?

The Senate has representatives, nominated by the Government, on it. Consequently, at all stages, outside public opinion and Government opinion have a much closer contact than in any university system outside of the Soviet Union. It is recognised in modern times that you can proceed on that basis. England, which gave us the statutes based on its own experience of 50 years ago, has departed radically from that position ever since. Now they recognise that these appointments have to be made in a relatively short time.

All we are asking here is that the present position should not be worsened until the Commission on Higher Education reports. I agree with the Minister that it might be worth considering amending the 1908 Act if the Report of the Commission were not so close but, that Report being imminent, I do not think it is worth while to make that amendment when other amendments will have to be made also. Consequently, I do not see why in these circumstances the Minister cannot accede to our very simple request not to make matters worse for the National University of Ireland and, above all, not to make matters worse for the neglected Colleges in Galway and Cork.

The Minister and Senator McQuillan may be ignorant of what goes on in the universities but a great many people seem to be ignorant of what is going on in this Bill and what it is intended to do. It was not the Minister only who referred to appointments. Senator FitzGerald also talked about the British Government bringing in this Act in 1908 in order to control appointments in Irish universities.

In order to regulate the method of appointment. The Charter lays down the method of appointment.

However, that is only by the way. I think a clear case was made for an amendment of the 1908 Act but I still have not heard anyone explain why this amendment would better the position of the universities. I agree with the Minister and I see no reason at all why the universities should be put in a special position as against any other body bringing in a Statutory Instrument. If it were doubling the time there might be a case but so far I have not heard why four weeks would, in fact, put the universities in a worse position. From what Senator Quinlan said it seemed to me that the universities are taking longer than 40 days themselves.

We shall be further encumbered by Government proceedings.

Fix it then.

We cannot under the 1908 Act.

(Longford): It appears to me at this stage that more people seem to take an interest in this Bill than Senator Sheldon. When the Bill was first introduced it seemed that no one understood it except Senator Sheldon and the Minister.

That is why we are complaining about the drafting.

(Longford): I have not read it and I do not intend to. Anything I know about it I learned from Senator Sheldon. Without having read the Bill, I think one aspect emerges and that is the old question of a collision between an executive authority and Parliament. I suppose that Members of Parliament who have no vested interest in an executive will always support Parliamentary control. This may put an end to this discussion. I have noticed that it was a collision between an executive authority and Parliament that led to the situation in which Charles I lost his head. I have a clear recollection of Senator Quinlan making a case for privilege, power and control by Parliament using the well-known phrase—I do not know who first said it—that power corrupts and absolute power corrupts absolutely. I think as much power as possible should be preserved by Parliament. I have sat on both sides of the House and I noticed that no matter what Government were in office when some executive body sought power the Government tried to give them as little power as possible—just enough power to do the particular job that had to be done. It appears that is an eternal struggle. There is an uneasy balance in that matter at all times. I am inclined to think that the Minister is right. The university authority being an establishment or an executive seem to want to get as much power as possible and the Government take the opposite view. I think the executive should be given as much power as is necessary and if a situation emerges in which more power is needed to deal expeditiously with any matter Parliament can mend its hand.

I suppose it was probably inevitable since we have travelled so much ground that King Charles's head should come into the debate. I find that interesting because in the course of examining the history of Trinity College, Dublin, I found that originally they had power to legislate for themselves. That power was taken from them by King Charles I and shortly afterwards he lost his head. I hope the Minister does not by his obduracy here today suffer anything remotely approaching that fate.

He might lose his seat in Cork.

It would take more than the universities to do that.

There are one or two points which I should like to answer. There was a great deal of sympathy for the universities but very little readiness to help them in this regard. I still think that this Bill could in certain years increase the burdens on the universities. The Minister has said the universities should be able at the beginning of the year so to order their business and calculate the timing of their meetings as to be able to foretell exactly when Dáil Éireann and Seanad Éireann would rise in July. Even the Taoiseach finds it very difficult to forecast that in the middle of July. It is ridiculous to say that it should be possible for the Senate of the National University of Ireland so as to order its meetings with beautiful and exact timing as to get these things through in a particular manner. The Senate of the National University of Ireland consists of representatives of the Government, the Colleges and the graduates who come together five times a year to transact business. The times at which they come together are largely circumscribed by the times of terms and examinations because the university is the ultimate authority in granting degrees.

The meetings of the Senate must be held after the summer, autumn and winter examinations. They are not free to meet except within those relatively narrow periods. They met in 1965 on July 8th. By the time the statutes passed would have been drawn up properly and printed, it was probably close to 1st August before they could be presented to the Houses of the Oireachtas. Under present conditions forty days then elapse and that would bring us to the middle of September. If we allowed for four sitting weeks for the Seanad this period would end on 15th November which was three weeks after the next meeting of the University Senate on October 28th. The position is that a statute dealt with when the Senate of the National University of Ireland met on July 8th, 1965, could not be given its final reading by the Senate until December 2nd. This Act would have imposed a delay of six months on these statutes in that particular year.

Now, a great deal has been said here to the effect that the House should not be robbed of its power of reviewing what the universities are doing. The amendment does nothing of the sort. The power which the House had prior to the introduction of the Bill to review these is still left intact. I think if there were as much diligence shown in examining these statutes as there has been in trying to argue against what the university representatives are looking for today there might be a better case against the amendment.

We have been told it is necessary for Parliament to review these. What is the actual position? They have been laid on the Table of the Houses year after year since 1908. I do not know how many times these were debated in the Houses. My own memory is that on only one occasion I know of—I am open to correction on this—was there a debate on a university statute, and that was on the occasion to which Senator McQuillan referred when the presentation of a university statute was made the occasion of a full-scale debate on University College, Dublin— and then it was not a debate on the merits of the statute itself but on the position in University College, Dublin. Apart from that, legislators have shown no interest in these statutes. There appears to be no real benefit to Parliament because Parliament never makes use of its powers. The inconvenience to the university which, in 1965, would have meant a delay of six months, is not counterbalanced by any Parliamentary advantage.

I understand that so little regard is had to the Parliamentary control of university statutes that they are not even circulated to the Statutory Instruments Committee of this House. They are not considered as Statutory Instruments in the ordinary sense of the word. All other Statutory Instruments are circulated to the Statutory Instruments Committee in order that they can be reviewed but not university statutes. The watchdog Committee which this House has set up in order to review Statutory Instruments is not interested in university statutes. So that this illusory Parliamentary control may be maintained the argument is made against the amendment that this is a good thing, that this is something that must be preserved at all costs and if this results in inconvenience for the universities well, then, it is just too bad. Parliamentary control is sacred and, like many sacred things in this country, it gets lip service but very little devotion in practice. I do not think the Minister has done himself justice in the way he has dealt with this particular matter. He said that the House should have some say in the procedures of the universities. Yes, let the Houses set up the overall procedure—but that the House should have some say in the precise terms of the appointment of a lecturer in medicine in University College, Cork, is, in this day and age, I think absolutely ridiculous. I do not think the Minister did himself justice in preparing for this debate in the House. There is one particular point on which I have to correct him. The Minister said that in a memorandum I wrote for the benefit of the Registrar of the University on this matter—of which I gave the Minister a copy—that I had indicated that a Bill brought in to amend the 1908 Act might have been ultra vires in regard to that Bill. I thought the Minister might have better regard for my ability than to think I would say anything as stupid as that. I said that to do this by general statute—meaning a general university statute, in attempting to set this in order—would have been ultra vires the 1908 Act. Throughout that memorandum, I was using the word “statute” in the sense of the university statute.

The only way to cure this matter is for a revision of the 1908 Act which I think is long overdue in this as in other respects. However, I do appeal to the Minister meanwhile not to make things worse. I would ask him not to make matters worse in approaching university affairs in, I think, the rather careless way he approached them here today.

Question put: "That words proposed to be deleted stand part of the section."
The Committee divided: Tá, 21; Níl, 14.

  • Boland, Gerald.
  • Brennan, John J.
  • Brown, Seán.
  • Connolly O'Brien, Nora.
  • Eachthéirn, Cáit Uí.
  • Farrell, Joseph.
  • Fitzsimons, Patrick.
  • Flanagan, Thomas P.
  • Honan, Dermot P.
  • McGowan, Patrick.
  • Martin, James J.
  • Nash, John Joseph.
  • O'Kennedy, Michael.
  • Ó Maoláin, Tomás.
  • O'Reilly, Patrick (Longford).
  • O'Sullivan, Ted.
  • Ryan, Eoin.
  • Ryan, James.
  • Sheldon, William A. W.
  • Teehan, Patrick J.
  • Yeats, Michael.

Níl

  • Alton, Bryan G.
  • Brosnahan, Seán.
  • Cole, John C.
  • Conlan, John F.
  • Dooge, James C. I.
  • FitzGerald, Garret M. D.
  • McHugh, Vincent.
  • Malone, Patrick.
  • Mannion, John.
  • Ó Conalláin, Dónall.
  • O'Quigley, John B.
  • O'Sullivan, Denis J.
  • Quinlan, Patrick M.
  • Sheehy Skeffington, Owen L.
Tellers: Tá: Senators Farrell and Eoin Ryan; Níl: Senators D. J. O'Sullivan and Conlon.
Question declared carried.
SECTION 4.

I move amendment No. 5:

Before section 4 to insert a new section as follows:—

"For the removal of doubt it is hereby declared that the power conferred by section 35 of the Registry of Deeds (Ireland) Act, 1832 to establish, reduce, alter or vary fees shall be exercised, and shall be deemed always to have been exercisable, only by order."

I am proposing now to come down from the exalted heights of university education to mundane affairs. I would like at first to make clear what I am trying to do and what I am not trying to do. I am not trying to show that there is, in fact, no statutory provision for the laying before the House of any Order regarding the establishment, introduction or alteration of fees in the 1832 Act. What I do hope to show is that there is a reasonable doubt as to whether or not such a provision exists. How I got to this point was arising out of what I said on the Second Stage of this Bill when I was querying the use of the word "only" in subsection (1) of section 4. At this stage I should like to say that I regret very much, indeed, that I was not here for the Minister's reply to the debate. I was at a meeting of a joint committee on a Private Bill and was thus unable to be here, but I have read what the Minister said and I must confess that it did not make me very much the wiser. I have another amendment dealing with that point, and I only refer to it now as the point of entry into my examination of this legislation and the result of it.

In going back to find out if it would be possible under the Act of 1832 to make an order with reference to fees I found what I think is something much worse. In section 35 of the Registry of Deeds (Ireland) Act, 1832, the Lord High Treasurer is given power:

to reduce, alter, or vary any of the fees, regulations, orders, or directions established or at any time hereafter to be established in the said register office, and to establish any other fees, regulations, orders, or directions: provided always, that every regulation, order, or direction so made or given by the said Lord High Treasurer or Commissioners aforesaid under this Act shall be forthwith laid before both Houses of Parliament...

The point to which I want to draw attention is that in the proviso which regulates the laying before the two Houses of Parliament there is no reference to fees. Twice fees are referred to in the quotation I have given, but in the proviso itself dealing with the laying of documents fees are not mentioned. It could be argued, and very likely will be, that if the Lord High Treasurer and the Commissioners were doing anything to fees—establishing, varying or altering them—they would do it by order. Is this necessarily so? Could they do it in some way which was not mentioned in the Act? I think they could. They could prescribe fees. In one of the last Bills we had before the Seanad, the Diseases of Animals Bill, there was such a doubt about the validity of the word "prescribed" that it was defined as meaning "prescribed by order".

If those gentlemen prescribed fees I think they would have escaped the proviso about laying before both Houses. I am quite sure it would be very unwise to underestimate the ingenuity of the Lord High Treasury in finding some way, if they did not want to bring a particular matter before the Houses. Section 4 of the Bill has a reference to the Land Transfer (Ireland) Act, 1848 in which there is a very specific thing laid down in regard to fees. They are prescribed by order and it is stated—the expression is very carefully employed—"By order under their hands to alter and vary the fees". They were very careful in this connection in 1848. That is only a few years after the 1832 Act to make it quite clear that any alteration or variation in the fees under the 1848 Act would be done by order under the Commissioner's hand. If that expression had turned up in the 1832 Act none of this would have happened.

Another thing which should be taken into consideration in relation to the 1832 Act is the time and the circumstances. Up to then the Registrar was a fee-paid officer. I do not know whether he prescribed his fee but he certainly collected it and paid himself. The main function of the 1832 Act was to bring that office into line with what we consider modern Civil Service practice whereby officials are paid by salary and do not just collect fees and reimburse themselves from the fees.

The main function of the 1832 Act was to do this. In the First Schedule the salary of the Registrar and other officers is laid down and in the Second Schedule the fees are laid down. The Act prescribes that the fees should be such, and only such, as will pay those salaries and any balance used to make the office more convenient for the public. I am glad to say that is still more or less the position because the fees collected at the moment by the Registry of Deeds, certainly the estimate of them in the current Estimates, cover a great deal more than salaries. I do not know whether the balance is used to make the office more convenient for the public. That is somebody else's headache, not mine.

Having regard to the fact that fees are not referred to in the proviso in the 1832 Act, that great care was taken in the 1848 Act to prescribe that the fees should be by order under the Commissioner's hand and that at the time, 1832, it is more than doubtful whether anyone thought that the precise Parliamentary control of the Registry of Deeds was something that was desirable, it was very much a treasury matter.

Now we come to section 9 of the Land Transfer (Ireland) Act, 1848, which also comes into the provisions of section 4 of the Bill. I am afraid it does not do anything to dispel my doubts. Let me quote:

The several Fees specified in the Schedule to this Act annexed, which Schedule, and all directions therein contained, shall be taken to be part of this Act; and it shall be lawful for the said Commissioners of Her Majesty's Treasury, or any three of them, by Order under their Hands, from time to time to alter and vary the Fees specified in the said Schedule, and to substitute other Fees therefor.

As I say, there is a tightening up here but as far as getting Parliamentary control into it there is none, because there is no provision in the 1848 Act for anything to be laid before Parliament, either orders, declarations or anything else. There is no question that anything done under the 1848 Act will be laid before Parliament so the doubt, I think, still remains.

The Registry of Deeds (Ireland) Act, 1875, is the next one with which we are concerned. It varies the time for Parliamentary action laid down in the 1832 Act. This, I think, is the kernel of the matter. The preamble to the 1875 Act does not refer to the making of fees by order. Unfortunately, the preamble has not any legal force. If they had got this reference to the making of fees by order into the first sections, which they might easily have done, things would have been clear. As it is, I understand, with deference to my legal brethren, that a preamble is only taken into account by a court to clarify some doubt. Certainly, I am quite sure it could not be taken to establish something which was not established earlier in the Act. The Act does not even mention fees as such. I quote:

Provided no regulation, order or direction mentioned in section 35 of the above revised Act.

"The above revised Act" is the Act of 1832, so the 1875 Act certainly does not clarify anything that was wrong in the 1832 Act. It may have been, at this stage, that the error, if there is, in fact, an error, crept in. In the 1860's the whole system of Parliamentary control went into a completely different gear. The office of Comptroller and Auditor General was set up. Parliamentary control was tightened up very much and it is quite reasonable to assume that in 1875 the parliamentary draftsmen may have assumed rather too much. With strict Parliamentary control at the time, it may have assumed that this went much further back.

As I mentioned earlier I am not always prepared to accept that Parliamentary draftsmen cannot err. I think this is where the trouble arose. There are endless other odd bits involved but they are not very germane to the main argument. I will not refer to them now unless I have to. I have searched everything I could since 1875 and I cannot find anything that sheds any further light on the matter. It is on this I rest my case. I think there is a doubt as to whether the 1832 Act did, in fact, provide that fees should be laid before Parliament, that fees were, in fact, prescribed by schedule. We do not normally do that now.

I am sorry to involve the Minister in this. He and his Department have no function in regard to those fees at all. There is an Adaptation Order No. 256 in relation to the 1832 Act which was transferred to the Minister for Justice and under another order, No. 280, all powers of the treasury in relation to the Land Transfer Act, 1848, were also transferred to the Minister for Justice. This was done when the scale of fees could be changed and it was, in fact, changed by an order. I may say that, looking at those orders, things are not too clear; they appear to me to purport to do things which they are not entitled to do. I refer to the one prescribing a new schedule of fees. However, that is probably a matter for another day and another place. In the Building Societies Act of 1874, a fee of 2/6 is prescribed. There is no power in the Act to vary it or do anything to it. This order prescribing the new fees is the Fees Order SI No. 287 of 1956 which actually gives this fee in the list of fees. I cannot understand how it got into the order, considering that it was a statutory fee laid down in an Act with no power to vary or how it got into an Act of 1956 unless the parliamentary draftsman lauded it. In the meantime all I want to stress is that orders made in relation to fees are certainly not statutory instruments. All I want to do is to suggest that there is a very reasonable doubt as to how anything which happened in 1832 could be regarded as a Statutory Instrument where it referred to fees.

I cannot help but comment on the very careful and analytical examination of these old Acts done by Senator Sheldon. I should like to say, in connection with section 4 as a whole, that the Minister for Justice voluntarily brought himself within the scope of this Bill. There was no obligation on him to do so and he did so mainly for the purpose of removing doubt as to the date of coming into force of Orders prescribing, altering or otherwise dealing with Land Registry fees. There was, I understand, some doubt as to what the 40 sitting days prescribed in the Act of 1875 meant. It was for the purpose of certainty as far as that was concerned and also for the purpose of ensuring that fees which would be prescribed by order of the Minister for Justice would come into operation as of a specified day that he asked to be brought within the scope of this Bill.

Senator Sheldon is quite right when he says that section 35 of the Registry of Deeds Act of 1832 did not indicate the manner in which the fees were to be prescribed. It did lay down, of course, that any order made could not come into effect until the end of the session of Parliament during which the Order was laid. That was amended, as the Senator pointed out, by section I of the Registry of Deeds Act of 1875, which said:

... no order ... shall be in force until the same shall have been laid forty days before both Houses of Parliament while in session, and if either House within that period resolve that the whole or any part of such... order ought not to be in force, the same shall not have any force, without prejudice nevertheless to the making of any other ... order ... in its place.

The Senator actually has unearthed something not adverted to in the brief I have in so far as the 1848 Act is concerned. The 1848 Act is silent, as he says, on the question of laying. I do not think his amendment would cure what he seeks to cure. The amendment reads:

For the removal of doubt it is hereby declared that the power conferred by section 35 of the Registry of Deeds (Ireland) Act, 1832 to establish, reduce, alter et cetera shall be deemed always to have been exercisable, only by order.

In fact any power exercised under that section has been exercised only by order. As I read the Senator's amendment, it would not affect any future act of the Minister. It seems to me, from my reading of the amendment, that he seeks to rectify what, in fact, does not need rectification.

I also said: "shall be exercised". It is an added safeguard.

Yes; I am sorry. Before Senator Sheldon drew attention to the particular provision in the 1848 Act, I was much better equipped to deal with his amendment. I would ask him to bear with me until Report Stage and I shall examine the points he has made.

Amendment, by leave, withdrawn.

I move amendment No. 6:

In subsection (1), line 49, to delete "only".

I am still puzzled about this use of the word "only". The Minister said it was desired that the section should apply only to orders applicable to fees. With that, I can partly agree, but I think that putting the word "only" in creates other difficulties. If you say relates "only" to fees, you bring in a difficulty because if an order related to fees and something else, it would not then come under the subsection. I think the use of the word "only" is completely wrong. I cannot see any use for it.

It is true that section 4 is intended to apply only to fees. As I said, the Minister for Justice brought himself voluntarily within the provisions of this Bill in order to ensure that the public, and particularly the legal profession who would have an interest in the making of the fees and the amount of fees prescribed for Registry of Deeds purposes, would know exactly the date on which the order comes into force. Therefore, section 4 was designed to ensure that the Minister could, in relation to any order dealing only with fees, specify a date three months hence on which the order would come into force, without affecting the laying provision. The suggestion I made in relation to the last amendment is valid here, too. In the context of the previous amendment it would also be desirable to have a look at the effect of the 1848 Act in connection with this amendment as well.

Amendment, by leave, withdrawn.
Sections 4 and 5 agreed to.
Title agreed to.
Bill reported without amendment.
Report Stage ordered for Wednesday, 9th March, 1966.