I move amendment No. 1:-
In page 3, between lines 45 and 46, 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."
On Committee Stage I argued this amendment in considerable detail, and the Minister for Finance who was then present said he was not completely briefed on the points raised and asked for time to have the matter considered. Fortunately, I re-entered this amendment for this Stage because apparently whatever consideration was given was not of the type that would be satisfactory to me. That is one of the advantages of having some Parliamentary experience, and not being too easily led to the belief that Ministers are about to be suddenly reasonable.
I said on Committee Stage that the section which the amendment deals with was not the function of the Minister for Finance but was more properly the function of the Minister for Justice. I am glad to see the Minister for Justice here to-day, and I suppose he will be better briefed than the Minister for Finance said he was. I had a certain amount of difficulty since. I do not wish to weary the House by going in detail through what I have already said. There is the added difficulty that the printed report of Committee Stage is still not available. If it were, I might have been able to refer to things which were said on Committee Stage. I propose to run through the salient points and elaborate in respect of one or two additional arguments which have occurred to me since.
Section 4 presumes that the fees prescribed under section 35 of the Registry of Deeds (Ireland) Act, 1832, were made by order. I believe that if there is any doubt as to whether these fees were, in fact, to be promulgated by order, section 4 ceases to have any meaning at all. I do not feel it is necessary for me to prove beyond yea or nay that the 1832 Act did not, in fact, envisage these fees being prescribed by order.
Since Committee Stage I have gone through this again, and I am as convinced as ever that there is reasonable doubt. Under the 1832 Act these powers were vested in the Treasury, whose natural successor would be the Minister for Finance, and under an adaptation order of 1956 these powers were given to the Minister for Justice. I am sorry the Minister for Finance is not here, because I was hoping to drive a wedge between the two Ministers on this point, by suggesting that the Minister for Finance should take a very hard look at what powers the Minister for Justice has, because they do not relate only to prescribing fees. They relate to the entire regulation of this office and without any reference to Finance at all.
Nowadays when questions of fees or any type of charge such as that arises, whatever Department is immediately concerned, there is usually a proviso either that the thing shall be done with the sanction of the Minister for Finance, or after consultation with the Minister for Finance. The Minister for Justice finds himself in the odd position that he has the last word under the adaptation order. However, that is more or less by the way, and whatever trouble I might have made for the Minister for Finance, I suppose I am not likely to make any trouble for the Minister for Justice by saying he has too much power.
As I see it, the trouble is that the 1832 Act does not specifically indicate how the Treasury shall establish, alter or vary fees. I suggested, and I still suggest, that with the background of the 1832 Act in mind, it is doubtful whether anyone at that time had the intention that these alterations and variations should be brought to the notice of Parliament my way of order. Even in the title of the Act there is a fair indication that this was not so. The proper title is: "An Act to Regulate the Office for Registering Deeds, Conveyances and Wills in Ireland". That was its function. The force of the word is "to regulate" in this context. Up to then the Registrar collected the fees and paid himself out of the fees. Under the new way of looking at things at that time there was a continual process of bringing all these offices under a regular system by which the officers were paid salaries, and fees and emoluments coming to the office did not go to them. It went one way or another to the Treasury.
In this case it is fairly clear that the whole thing was very involved. Under the 1832 Act the fees went to pay the salaries and expenses of the office and if there was any surplus it was to go into the consolidation fund but on its way there it was earmarked for the expenses of the office. In fact, its main task was that it should be used to make the office more convenient for the public. It is not very clear what was supposed to happen if the fees did not meet the salaries but since the Treasury had power to sack anybody in the office or to reduce the salary of anybody, it is obvious they had also the power to adjust the salaries so that the fees would meet them. I presume that under the old set up it was not considered likely that the fees would not meet them. Whether in every year since 1832 there was a surplus over and above the salaries and expenses I do not know, but if there was and all this was properly directed, as the Act states, towards making the office convenient, by this time it ought to be about the most convenient office one could think about because it had more than 130 years to become so.
There is a reference in Halsbury in relation to a question not the same but it has to do with statutory rules and their publication and here a clear distinction is drawn between orders which are legislative and orders which are executive. Legislative orders are those proper to be laid before Parliament but executive orders did not have to be dealt with in that way. My argument is that in 1832 there does not seem to have been very much doubt that the fees in relation to the salaries and expenses were looked on as an executive matter for the Treasury, the whole thing being under their control.
I should like to be able to produce evidence one way or the other on this matter but I am not able to say that between 1832 and 1875 the fees were ever altered or varied. I do not know whether between 1875 and 1956 they were altered or varied. There were two Treasury orders about 50 years ago but I cannot find them in the Library so I do not know what they purported to do, but I have at the back of my mind a recollection that in 1956, when a new schedule of fees was brought in, somewhere there was reference to the necessity for this change because the existing fees were of such long standing.
The Transfer of Land (Ireland) Act, 1848, is of no assistance in clearing the matter up, as I pointed out on Committee Stage. The fees prescribed in the schedule to that Act are described in the Act as capable of being varied and altered by order under the hands of the Treasury, but, unfortunately, the Act does not say anything about orders, regulations, rules or anything else being laid before Parliament. There is nothing in it and the intention in 1848 was that the fees should be prescribed by order. It is not without significance that no suggestion occurs in the 1848 Act that Treasury orders should be laid before parliament. In the 1875 Act, there is a presumption that fees under the 1832 Act will be made by order but this reference is in the preamble and not in the section of the Act. This, I admit, poses a certain amount of difficulty because what exactly is the force of the preamble is not always very clear. There is one sidelight on it—I am not very sure of the date—in Halsbury's citing of Coke on Littleton:
By the authority of our author, the rehearsal or preamble of a statute is to be taken for truth: for it cannot be thought that a statute which is made by authority of the whole realm, as well of the King as of the lords spiritual and temporal and of all the commons, will recite a thing against the truth.
I hope the Minister has not relied on this rather ancient quotation because every indication I can get is to the effect that if there is in a section of an Act something which is ambiguous the preamble can be cited to clarify its ambiguity and the courts shall have reference to it, but I cannot find anything to suggest you can use the preamble of an Act to clarify a section of an Act 40 years earlier. It is probably fortunate that it is in the 1875 Act that it is the preamble which is in question. Before 1851 you had the odd effect that there is no section 1 in any Act. You get the preamble and the first section is marked II. From 1851 on, this is changed and there is a preamble followed by section 1 and so on. Therefore, I would be very doubtful about the pramble of an Act before 1851 because of the curious way parts of the Act were marked out. The preamble to the 1875 Act does no more than state the reasons for the enactment and I think that is all one can hope a preamble will do. It is not so different from a speech made by a Minister introducing a Bill, stating why it was desirable the legislation should go through. If a mistake occurred in 1875, the parliamentary draftsmen of that time somewhat rashly assumed that the fees in the 1832 Act must be done by order. It is quite understandable because in between the two dates there were the 1860s in which the whole system of parliamentary control was very much revised particularly in financial matters. It is not too difficult to envisage that a parliamentary draftsman in 1875 would have got into difficulties because of the control of moneys which came in with the appearance of the Comptroller and Auditor General and the Public Accounts Committee in the 1860s. He could very easily walk into such a trap.
I am only saying this to show that there is a doubt in this matter and I suggest that even if it is only a very slight doubt it is very easy to put it right. What I am suggesting should be added into the Bill will not do any harm even if it may not do a tremendous amount of good. There is nothing in it to injure anyone except possibly the parliamentary draftsman who may think, by allowing this to be accepted, that it is a criticism of himself for not having seen the point. I suggest that is silly. No such question arises at all. If there is a doubt, we ought to clear it and it is very simple to clear it.
The Minister for Finance was slightly confused in the reading of the amendment. He thought I was talking about the past, whereas it refers to any power which shall be exercised and shall be deemed always to have been exercisable so it deals with the present and the future as well as the past. The reason for dealing with the past was that the order of 1956 was presented on the presumption that this business could be done by a statutory instrument and that that was the proper way to deal with it. If there is a doubt, then I think that particular instrument needs to be bolstered up by making it clear that it is now assumed to have been a proper statutory instrument for laying before the Houses.
The Minister, of course, may have more information. It is very natural he should and I must admit I would be very impressed if he could show that between 1832 and 1875 these orders were altered, varied and established and that this was done by order laid before the Houses of Parliament. I have not been able to discover it. I would not be as impressed by anything done after 1875 because such an order would be relying on what I think is a defective Act in the sense that it assumes something which is not proper to assume so I trust the Minister will not rely on some possible way of reading the 1875 preamble into the 1832 Act.
It is important that this matter should be cleared beyond doubt and it is only for the avoidance of doubt I am suggesting this amendment. I do not see whatever good it may or may not do but I suggest it cannot do any harm. It would be safer to include it in and make absolutely sure that any orders made in regard to fees have been properly made and will in future only be made by order.