Seanad Éireann debate -
Wednesday, 29 Jun 1966

Vol. 61 No. 12

Credit Union Bill, 1966: Report and Final Stages.

Mr. O'Quigley

I move amendment No. 1:

In page 3, lines 13 and 14, to delete "CERTAIN OTHER ENACTMENTS" and substitute "THE FRIENDLY SOCIETIES ACT, 1896 AND THE INSURANCE ACT, 1936".

I think it was generally agreed the other night that if we are going to make amendments to Acts which are quite unrelated to the subject of the principal Act we ought to refer to the fact in the Long Title of the Bill. Therefore, since we are amending the Friendly Societies Act of 1896 and the Insurance Act of 1936 it seems to me proper that we ought to refer to this, in order to alert those who may have to look up the law at any time, that these particular enactments contained in the Schedule have, in fact, been amended by this particular Bill. Perhaps, I could also move amendments Nos, 2, 3 and 4. They are all relevant.

An Cathaoirleach

We are taking amendments Nos. 1, 2, 3, 4 and 9 together.

Mr. O'Quigley

What I was saying is that as a consequence of highlighting the fact that the enactments contained in the Schedule were being amended, the operative part of the Bill, which is section 37, should be transposed before section 2 so that anybody taking up this Bill would, first of all, see the ordinary definition of the Bill and see clearly that it is a Bill amending the Friendly Societies Act, 1896, and the Insurance Act of 1936.

As a consequence of doing that, amendment No. 2 becomes necessary because it is desirable to divide the Bill into two parts, first of all the part which gives definition to the Bill with repeals and amendments, and then the rest of the Bill, which is concerned with credit unions. That would be an improvement in the drafting of the Bill. I move that this amendment be accepted.

Professor Stanford

I should like to support the amendment. It very definitely improves the clarity of the Bill. I had an experience a few years ago working with a Government draftsman on a private Bill, and was very deeply impressed by the care which the draftsman took in drafting this Bill. In fact, it came into my mind that a good draftsman takes as much trouble in choosing his words and arranging his sections as a great poet, such as W.B. Yeats or William Shakespeare, took in choosing their words and arranging their lines. It is extraordinary the care and precision these men employ and in many ways the draftsmen are as dedicated as the poets. However, even competent and highly skilled poets occasionally wrote a poem that could be improved and I suggest the Bill can be improved by small, almost mechanical, changes. Looking up these enactments involves hard work for lawyers. I accordingly support the amendment.

Mr. O'Quigley

Fees will go down accordingly.

Professor Stanford

I hope so.

Parliamentary Secretary to the Minister for Industry and Commerce (Mr. S. Flanagan)

I undertook last week to go into this matter and I wrote at considerable length to the Parliamentary Draftsman in regard to the points raised. I did so in the light of my own remarks here last week to the effect that it is generally undesirable and makes life difficult for the practitioner to have amendments on seemingly unrelated Acts included in a Bill of this kind.

I shall deal first with the matter of the Long Title. The Parliamentary Draftsman is very strongly against an amendment on the lines suggested in the first amendment we are considering, and he says that it is not, or never has been, the intention that the Long Title of a Bill should be exhaustive. It is intended to be a general indication of what the Bill is about. This Long Title does generally set out the aims of the Bill.

I would also point out that the amendment as it stands might not be accepted because of the deletion of the words in the Long Title "to amend certain other enactments". These must remain because, apart from the Friendly Societies Act of 1896 and the Insurance Act of 1936, there is reference made to the Moneylenders Acts and the Central Bank Act in sections 28 and 29. It remains then for the House to decide whether or not there is substance in the view that it would not be a good precedent to try to make the Long Title of the Bill exhaustive, and I am inclined to weigh in with that point of view, having given a good deal of consideration to it, much from the lawyer's rather than the parliamentarian's point of view.

I might also add that the legal practitioner is expected to read the whole of a Bill, and he cannot, therefore, be regarded as being taken by surprise if he finds, as in the light of our history here he can expect to find, certain unrelated enactments referred to and amended by legislation which on the face of it would not appear to relate.

With regard to the other amendments 2, 3, 4, and 9, the draftsman also objects to the amendments designed to effect structural alterations at this stage. In that I suppose the House will have sympathy with him. I agree with Senator Stanford that the draftsman does use great care and great precision, and I also suspect that from time to time even with the greatest care and precision certain things creep into a draft which may be undesirable. Let us assume then, for the sake of argument, that the mechanical structure of this Bill could be better than it is. The Parliamentary Draftsman points out that this is a matter which surely relates not merely to this particular Bill but to legislation in general and, therefore, is one which should be taken up, not at a very later stage in the Seanad in regard to this particular Bill, but in a general way in some other more suitable place with a view to achieving what might very well be the desired result of a better presentation of legislation.

With regard to the transposition of sections 37, 38 and 39 to an earlier part of the Bill I have had a look at recent legislation and in the main with small Bills these provisions occur at the end rather than at the beginning. If we rearrange the Bill now those who are responsible for seeing that the Bill goes through in final form as it was passed by the Oireachtas would be faced with very considerable and very difficult work in ensuring after the reprinting that, in fact, the Bill as passed by the Oireachtas had been accurately reproduced in print.

Accordingly, I would not recommend to the House the acceptance of these amendments. In regard to the division of the Bill into parts I would point out that in the past ten years, only in two enactments, was this particular modus operandi used, i.e. dividing a short Bill into two Parts. With long Bills such as the Companies Act, there are special reasons, the complexity of the legislation involved being such as that it has to be divided into several parts. The draftsman's office is not in favour of dividing a Bill into parts unless more than two parts appear to be necessary.

I must say that I have sympathy with the point of view that this is a very late stage at which to ask for a mechanical amendment to the Bill, and accordingly, subject to the House's agreement, I would propose to let the Bill stand.

Mr. Garret FitzGerald

While I see the point about it being a late stage I am unhappy with that particular reaction in some respects. First of all, it was raised at a rather late stage because the sense of these sections and the repeals involved only emerged on the Committee Stage and there is no evidence that in their passage through the Dáil their significance was appreciated either. Certainly in this House as soon as it was appreciated we raised the matter at the earliest stage possible. I am appalled by the Parliamentary Draftsman's suggestion, if it is correctly conveyed, as I am sure it is, that apart from this question being raised at a late stage this House is not an appropriate place for it to be raised, and that it should be raised somewhere else. It seems that the Parliamentary Draftsman is suggesting that the House should not concern itself with matters of legislation. That is the point of view, which I may have misunderstood perhaps, but if that were his point of view, it is not one that we could readily accept.

On the other point made about the Long Title I would be sympathetic. I must say, with the draftsman's feeling that it is undesirable to establish a precedent to the effect that every Act named in a Bill must be in the Long Title. This would make the Long Title terribly cumbersome, but that was not the point. The point that we were making was that the Long Title down to "The Industrial and Provident Societies Acts, 1893 to 1936" deals with one part of the Bill and that the Long Title contains no reference to the quite different part of the Bill dealing with quite different matters. I see no reason, for example, for including reference in the Long Title to the Central Bank or Moneylenders Acts which can appropriately be included in the heading "Certain Other Enactments". They do certainly arise out of the main body of the Act and do not raise either new or different issues. This is not the case with regard to the Acts which we seek to name in the Long Title, Acts which deal with something completely different. While the Long Title need not be required to mention all the Acts amended or to mention everything in the Bill it should not be of such a character as positively to mislead the ordinary person reading the Long Title who I think can reasonably assume that the words "to amend certain other enactments and to provide for other matters connected with the matters aforesaid"—here there seems to be an ambiguity in the grammar. In the absence of any commas the words "connected with the matters aforesaid" could be held to cover "certain other enactments" as well as covering "to provide for other matters". My reading of it, in fact, was that this was a Bill to do various things, to amend certain other enactments connected with the matters aforesaid, and to provide for other matters connected with the matters aforesaid.

That seems to me, in the absence of any commas, to be a very reasonable reading. I would not, indeed, be surprised to hear a court decide that it was the correct reading. That being so, the Long Title is at its best ambiguous and at its worst misleading and is of such a character as is possible to invalidate the legislation. It seems to me, therefore, we must require that some reference be made in this Long Title to these two Acts we are amending, which have nothing to do with credit unions. We know they are properly included within the general words at the end of the Long Title. I think we ought to press for the inclusion of the other two and then leave these two out. In that way we are meeting the Parliamentary draftsman's point and his objections by suggesting that the Title should include all enactments.

The case is a very strong one and it would seem to be unwise and temerarious not to include them in the light of the possible reading of the Long Title, as I have indicated.

Mr. O'Quigley

We have heard what, I think, is a remarkable speech by the Parliamentary Secretary. It was remarkable for the reason that he has had the frankness, for which he is well noted, in telling the House all that the Parliamentary draftsmen told him. One could straight away flay the Parliamentary draftsmen and cause a certain amount of discomfort to the Chair by discussing public servants who are not in a position to defend themselves. We might very well be entitled to do that because they have been brought in here and paraded before us. Therefore, I think we are entitled to comment upon what they have said, done and advised. However, I do not propose to pursue that in the particular way one might be tempted to do.

When the Parliamentary Secretary first came into this House on the motion on Man Power Policy I warned him to remain himself, to be himself and that if he were himself he would be a great parliamentarian. Further, when he is convinced of anything himself and having received advice, he should make up his mind and not be over-burdened or too guided by the caution with which he would be weighed down, the ballast that will be added to prevent him sinking by the Civil Servants—as they have done—who advise him day in and day out. The Parliamentary Secretary's own disposition of mind is to go the way I suggested in this amendment. That is quite clear from what he says.

The Parliamentary Secretary then, very properly, had recourse to the Parliamentary Draftsman for advice and, of course, what will the Parliamentary Draftsman do but justify all he has done in the Bill? If the Parliamentary Secretary ever finds himself in any difficulty and he wants to get out of it, then he should always have recourse to the Civil Service advisers for not alone will they give him one excuse but a variety of excuses and he can pick and choose which one he likes. The Parliamentary Secretary knows that, because the Civil Service are a very highly skilled and intelligent group of people who see things from all angles and who will say: "Well, of course, Parliamentary Secretary, this course or that course can be adopted" in the excuses they are looking for for not doing something because that is the great reputation of the Civil Service. The Parliamentary Secretary can be certain of getting this in abundance and of getting arguments of the highest qualities and most convincing as to why something ought not to be done.

I want to deal with what the Parliamentary Draftsman has to offer to this House by way of a reason for not adopting this amendment. What has been said in relation to what may and may not be contained in the Long Title of a Bill is perfectly true. We all know that in a matter of interpretation the rule adopted by the courts is that the Long Title is merely a mention of the general intentions and is not exhaustive of the main purpose of the Bill. That is so, and that would be perfectly all right if this was a Bill dealing with credit unions and the Principal Act—the Industrial and Provident Societies Acts of 1893 to 1936. But here is where I take issue with the Parliamentary Secretary and his advisers. When a Bill which has nothing whatever to do with the Insurance Act of 1936 and has only the most tenuous connection with the Friendly Societies Act of 1896 is introduced then that should be clearly set forth in the Long Title to the Bill.

The amendment contained in Part III of the Schedule as I understood the explanation of the Parliamentary Secretary the other night—which I do not think was all that forthcoming because the Parliamentary Secretary was somewhat abashed by the fact that the Insurance Act of 1936 was in it—is not related to the general tenor of the Bill which deals with credit unions. Once you take sections 2 to section 37 you are dealing entirely with credit unions and one would not expect to find an amendment of the Insurance Act of 1936 or, indeed, of the Friendly Societies Act of 1896, in a Bill of this kind. Having said what is to be said about the Long Title in order then to buttress up this argument we are told: "Oh, well, you could not do that because you cannot leave out certain other enactments," because, in fact, we are not amending, we are restricting the application of the Moneylenders Acts of 1900 and 1933 and restricting the application of the Central Bank Act 1942 in sections 28 and 29. I suppose, if one wishes to take it that way, we are amending these two Acts in that particular way but if there was any desire to meet the legitimate objections of this House to being misled — now I use the word which I said I did not want to use— by the manner in which this Bill was brought in and drafted; if there was any attempt at all to meet the legitimate objections of this House, we would not get that kind of stuff. We would have been told: "We could meet this by leaving in ‘certain other enactments' and put in before that ‘The Friendly Societies Act of 1896 and the Insurance Act of 1936'", but the attitude that sections 28 and 29 are being amended and giving that as an excuse as to why it cannot be done, frankly, annoys me.

I remember well the committee which sat on Electoral Law Reform and we had officials from the Department of Local Government. I think the Parliamentary Secretary was a member of the committee. Our advisers decided that we would amend the law so as to put on the Ballot Paper, opposite each candidate's name, the political Party to which the candidate belonged and the officials in the Department of Local Government said it could not be done. On the third occasion that it came up they wanted to persuade us that the committee had decided not to deal further with the matter. I merely say this to illustrate the non possumus attitude which the Parliamentary Secretary is up against and with which he must deal. This is the non possumus attitude we have here in this Bill which, frankly, annoys me. Of course, it can be done. When we were here the other night I wished to give the Parliamentary Secretary all Stages of the Bill.

We were very pleased, and we still are pleased with the approach of the Parliamentary Secretary to the Bill. Now we are told because we wished to be accommodating that we are too late in raising the matter at this stage. I approach the Parliamentary Secretary's argument on that in the same way as Senator FitzGerald. I feel that the Parliamentary Secretary disagrees with me but I do not think under the rules of the House that he would be entitled to reply at this stage. I certainly would waive that.

It is certainly the purpose of this Chamber to amend legislation. It is only as I said at a very late stage that I saw the reference to the Insurance Act of 1936 in the Credit Union Bill. It was at that stage that I decided to put down this amendment, which I considered a reasonable one. I think the Parliamentary Secretary would like to clarify this and I am prepared to give way to him.

Mr. S. Flanagan

Am I entitled to speak?

An Cathaoirleach

Not on Report Stage.

Mr. S. Flanagan

Could I speak on one amendment?

An Cathaoirleach

The Parliamentary Secretary will be entitled to clarify some point, by leave of the House.

Mr. S. Flanagan

I think Senator O'Quigley has totally misunderstood this discussion. Indeed, I am inclined by his attitude to force through what the Parliamentary Draftsman wants. I did not say that I was totally against the acceptance of amendment No. 1. I pointed out, as dispassionately as I could, the objections that had been raised by the Parliamentary Draftsman against their inclusion but I did not commit myself at all. In fact, In am prepared to accept amendment No. 1, much though I resent Senator O'Quigley's attitude and, indeed, some of the statements he has made.

I should also like to clarify a misunderstanding which appears to be common to both Senator O'Quigley and Senator FitzGerald in regard to one statement that was made by the Parliamentary Draftsman, with which I said I agreed, that is that in regard to amendments Nos. 2, 3, 4 and 9. Those amendments raise an issue of a general nature which would have related, not merely to this legislation, but to the whole question of the proper presentation of legislation. It is, therefore, a very wide issue and one which may be quite properly raised at this or any other stage by the Seanad and which could be quite properly raised by any other Senator or any Member of the other House. It is a general question of procedure to be adopted in relation to legislation which might be raised more appropriately in some other context.

Senator O'Quigley rose.

An Cathaoirleach

The discussion is concluded on this amendment.

Mr. O'Quigley

The Parliamentary Secretary merely intervened in order to clarify something.

An Cathaoirleach

I understood the Senator had concluded.

Mr. O'Quigley

I had not. I said I thought the Parliamentary Secretary had a clarification to make and that I would yield to him. Those were the very words I used. I understood I was yielding to the Parliamentary Secretary because I felt I was going on the wrong lines in my interpretation of what the Parliamentary Secretary said earlier. I merely interrupted my speech.

An Cathaoirleach

The Chair is satisfied that the Senator had concluded. The Parliamentary Secretary, by leave of the House, was given an opportunity to clarify a certain point. The Chair is ruling that the debate has concluded.

Mr. O'Quigley

I bow to your ruling.

Amendment agreed to.

Mr. O'Quigley

I move amendment No. 2.

In page 3, between lines 16 and 17, to insert "PART I".

Question put.

Amendment declared negatived.

Amendments Nos. 3 and 4 not moved.

An Cathaoirleach

The Chair suggests that amendments Nos. 5, 6, 7 and 8 be taken together.

Government amendment No. 5:

In page 19, between lines 45 and 46 to insert the following new subsection:

"(3) Where a regulation is proposed to be made under paragraphs (b), (g), (i) (except in so far as it relates to time limits), (j), (k) or (l) of subsection (1) of this section, a draft thereof shall be laid before each House of the Oireachtas and the regulation shall not be made until a resolution approving of the draft has been passed by each such House."

Mr. S. Flanagan

I must say I am prepared to accept either version of these amendments, the Government amendments or the one in the names of Senators O'Quigley and FitzGerald, if acceptable to the Seanad. There was a similar amendment put down by the same Senators on the Committee Stage. I indicated that I agreed with the point of principle involved, namely, that the law should not be substantially changed by regulation otherwise than with the approval of the Houses of the Oireachtas. There is not a great deal of difference between the two amendments——

Mr. O'Quigley

Except the Parliamentary Secretary is more generous.

Mr. S. Flanagan

——except that the amendment I have put down is slightly wider. It seems to me that anything which might be regarded as changing the law should not be included and for that reason I made the draft as wide as possible. In regard to amendments Nos. 7 and 8 I submit to the House that the drafting in the Government amendment may be slightly preferable to that of Senator O'Quigley. I recommend that it be accepted. Whichever amendment, No. 5 or No. 6 is accepted, amendment No. 7 or No. 8 is consequential and must be accepted in one form or the other.

Mr. O'Quigley

When I got this amendment sheet I was absolutely delighted with the approach adopted by the Parliamentary Secretary on this matter. That has been my feeling about the Parliamentary Secretary's whole approach to this Bill from the very start and, indeed, here this evening. I take this early opportunity of tendering my apology for my misinterpretation of what he said earlier. It was because I felt I had misinterpreted him that I gave way to him when I was making my concluding speech on the last amendment. The Parliamentary Secretary wants to bring within the ambit of the law the regulatitons which must receive the approval of the Oireachtas before the regulations are made. Naturally, generosity of this nature, which is so rare, should be encouraged wherever it seems to bud and I am pleased to support the Government amendment and withdraw mine. I think the Parliamentary Secretary has slight preference for his amendment.

Amendment agreed to.

Amendments Nos. 6 and 7 not moved.

Government amendment No. 8:

In page 19, line 46, before "shall" to insert "(other than a regulation to which subsection (3) of this section applies)".

Amendment agreed to.

Amendment No. 9 not moved.

Bill, as amended, received for final consideration.

Question proposed: "That the Bill do now pass".

Mr. O'Quigley

I do not wish that the Parliamentary Secretary, who received and deserved such warm commendation—I am sure he does not mind whether he gets it—should leave the House feeling that, notwithstanding the slight misunderstanding we had, he does not deserve great credit for the manner in which he met the wishes of the Seanad on these amendments. I regret that the statements the Parliamentary Secretary made on amendments Nos. 1, 2, 3, 4 and 9 did not come across to this side with the clarity which one, in retrospect, would have wished. However, I hope that in the implementation of the Bill the Parliamentary Secretary, if he finds there are any lacunae that have not been dealt with, will come back to the House with amendments when he can be assured of a speedy passage for any such amendments. I hope the credit unions, which will now have a more definite place in the life of the country, will thrive, and I trust that in future, legislation of this kind will not involve extraneous and unrelated matters.

Mr. S. Flanagan

I thank the Senator. It is not the first time that lawyers have disagreed and it is not likely to be the last. I am happy the disagreement in this case was not on the main theme. I should like to take this opportunity of saying two things. First of all, I have considerable hope, as regards the west of Ireland, in which I have a special interest, in the future of the credit union movement for the purpose of harnessing for parochial, communal and county development projects, funds which at the present time are lying idle or are of a nature which are not attracted by existing forms of investment. I recommend most heartily the credit union system to the people of the west of Ireland in particular and, of course, I recommend it to the country as a whole.

Secondly, I should like to take the opportunity of expressing my sincere appreciation of the work done by Miss Nora Herlihy, of the great efforts she has made in fostering interest in the credit union movement. I take great pleasure in paying this public tribute to Miss Herlihy. I know she is very pleased that her enthusiasm and energy have helped to make the passage of this Bill possible. I cannot let the opportunity pass without congratulating the officials responsible for the preparation of this detailed piece of legislation. I thank them for the assistance they have given me. I wish to assure Senator O'Quigley and the House that for the reasons I have mentioned I shall keep a very watchfull eye on the development of the credit union movement and that I shall not be slow to come back to the Oireachtas if improvements in the legislation are required.

Question put and agreed to.