Before we take up consideration of the Report Stage of this Bill, I should like to indicate that I have ruled amendments Nos. 7 and 9, in the names of Senators Alexis FitzGerald and Boland, out of order as they involve new matters of substance which were not effectively before the Committee on the Bill. The Senators have been notified accordingly. Amendments Nos. 1, 2, 5 and 6 may be taken together.
Local Government Services (Corporate Bodies) Bill, 1971: Report and Final Stages.
I move amendment No. 1:
In page 2, line 28, to delete "if he thinks fit," and substitute "whenever he determines that it is expedient to do so, by order,".
The purposes of these amendments are well known to the House. The reasons for them were discussed on Committee Stage and the Minister was asked to consider introducing them himself on Report Stage. However, as he did not do that Senator FitzGerald and I felt it incumbent on us to introduce them.
What in effect is happening as the Bill now stands is that in section 3 the Minister may make an establishment order to set up a body corporate to provide services for local authorities and for health boards. At some future date he can then designate to that body the power to provide those services for some other organisation which is not a local authority and which is not a health board. Quite surprisingly, considering the procedure which the Minister has to go through to set up a body corporate in the first place, it entails laying an order before both Houses of the Oireachtas and allowing them seven days within which they may enter a motion for annulment.
We discover that the Minister does not have to make an order if he decides to adopt this rather strange procedure of extending the services which the body corporate are providing to organisations other than local authorities or health boards. We felt that this would be a strange step for the Minister to want to take. Obviously, organisations set up in the local government field would in the main be providing services for local authorities and, to a much lesser extent, for health boards. Any move to provide those services for some other organisation ought at least to be brought to the notice of the House of the Oireachtas, and the Members of each House of the Oireachtas should be given the opportunity to enter a motion for annulment in the same way as they would get an opportunity to enter a motion for annulment in the first instance.
That is why we have tabled amendment No. 1, which would merely oblige the Minister to make an order if he so desired to extend those services in the same way as he himself has made it obligatory upon himself to make an order in the first instance, if he wants to set up a body corporate.
Amendments Nos. 2, 5 and 6 are merely consequential on amendment No. 1 and allow, of course, for the eradication or amendment of the order which the Minister might make. For this reason these amendments were entered. We feel that they are worthwhile and that they do not in any way affect the intent of the Bill; they merely make it a little bit more democratic and perhaps a little bit more palatable to those few Members in this House who expressed reservations about various aspects of it. Probably what we are trying to do now is to correct a little bit of loose draftsmanship that initially crept into the Bill. It would also be helpful to enter this amendment and have it accepted, because then the Minister would be sure as to where his powers lay. I got the distinct impression the last day, when the Minister was asked by what power he was going to designate, that he seemed to be rather unsure as to whether his power lay under this Bill. He had said at first that it did and then he felt that even if his power lay under this Bill it did not oblige him to lay an order before the House which this Bill clearly does. Then he decided that his power lay in the Ministers and Parliamentary Secretaries Act. We felt that rather than have this sort of confusion existing and this uncertainty carrying on, and perhaps giving rise to long and detailed discussion when this Bill goes to the other House, the easiest thing would be to clarify it at this stage and to help the Minister by entering this amendment for him.
An Leas-Chathaoirleach
I would remind both Members of the House and the Minister that we are on Report Stage now and accordingly it is possible for each person to speak only once under Standing Orders.
May I reserve my right to speak after the Minister has spoken?
I should like to say a word in support of this set of amendments to be moved by Senators Boland and FitzGerald. It seems to me that there is not any great difference between what the Minister has in mind and what is provided for in the amendments. The difference is, if you like, one of approach. Under subsection (1) of section 3 the Minister may make an establishment order which will provide for the establishment of a body. That body can provide services for the Minister or for specified authorities, or for both.
In subsection (2) the Minister clearly envisages that, having established the body by means of his establishment order and having got them into being, it may prove useful if, instead of limiting the scope of the services which the body may provide either to the Minister or to some specified authority, some other authority could, under this section, be a body designated for the purpose.
All that Senators Boland and FitzGerald are advocating is that the Minister should be consistent in the operation of this section, that if he is required by the section, as he is required by the section, to bring the body into being by means of an order, it should not then be open to him simply as he thinks fit to designate another body for which the established body shall perform services. The only difference lies in whether the Minister is being consistent in saying by means of this section that he should have the authority as he thinks fit to designate any other body or whether he should not be required, when designating that other body, to do it by order. If he does it by order, there are certain consequences which are laid down in the Bill which flow from that and which will give the Houses of the Oireachtas an opportunity one way or another of considering it. That, I think, is the only difference.
I would plead with the Minister to have consistency going through the Bill as a whole and going through the particular subsections of section 3 of the Bill. It is not weakening his powers; it is not weakening the Bill in any way. All it requires is that, instead of the Minister making up his mind—thinking fit, to go back to the phrase used in the section—he should be required to make a formal order in the matter. That will not put any great pressure on him or on his officials.
I should like to support this amendment. I think it is important from the point of view of administrative law and from the point of view of control over Ministers in making statutory instruments that this type of designation of a body ought to be made by an order which will eventually be laid before the House so that the Houses of the Oireachtas will know what is happening. As Senator O'Higgins has said, it will not place any great burden on the Minister. It is the type of control which the Houses of the Oireachtas ought to require of a Minister so that the Committee on Statutory Instruments or the Houses themselves can view the order and can know, because of the value of the publicity, exactly what is happening and exactly which bodies have been designated. From the point of view of the mechanics of it, I would agree that the amendment does no more than formalise the procedure, but it is important from the point of view of parliamentary control and for this reason I strongly support this amendment.
I am a little dubious on this because I have got to confess to the House that I have left all my files behind me—I do not know where, which is still more worrying.
I have not therefore got with me the Ministers and Parliamentary Secretaries Act but I did check it subsequent to the Minister's speech on the Committee Stage. It did seem that, as I expected, he was advised to say what was right and said what was right with regard to the legal position.
What is proposed in these amendments seems to me merely to write into this Bill, when enacted, what you have to look through another Bill to find is the true position. If lawyers find if difficult to construe an Act it is a bit hard on other people. It is even hard on lawyers who should not be asked to run around in circles getting things. The civil servants who are advising the Minister have all this stuff, presumably nicely tabulated together, for their own convenience and the proper and efficient working of their Department, and that makes it easy for them to give good advice to the Minister. It makes it jolly hard, however, for another person who is trying to give good advice to an ordinary client if he has got to race through a whole series of statutes to find wherein is the power of the Minister to do this. The matter may arise. It may arise because of court proceedings or rights and liabilities and so on.
However, where my doubt lies is because—I think you rely on the designation, for the purposes of subsection (3), in the Ministers and Parliamentary Secretaries Act, though I have not got that Act here, unfortunately—there is a conflict then between section 7 of this Bill and the section in the Ministers and Parliamentary Secretaries Act which deals with the question of laying orders made by a Minister before the Houses of the Oireachtas. I think the period specified, in whichever is the relevant section there, is 21 days whereas the period specified in section 7 is seven days. You may be curing a defect in your Bill.
At the outset I should like to emphasise what I said last week that the only effect of designation will be to enable a corporate body to make available services that they were set up to provide, or services of a similar nature, to the designated body. The terms on which these services will be made available will be agreed between the corporate body and the designated body. The designation procedure was really decided on just to give the Minister general control over the scope of the activities of the corporate body. I gave examples last week of the kind of bodies which might be designated under this Bill. They include vocational education committees, country committees of agriculture, boards of conservators of fisheries, harbour authorities and corporate bodies established under the Health (Corporate Bodies) Act, 1961.
I also explained last week that the power to designate would be used only if the bodies in question sought the services which the corporate body were providing. I think it should be clear from what I said that all that is involved in subsections (2), (3) and (4) of section 3 is that a procedure is being established by which one public body may provide services for another public body. The decision to seek the services in this way is not a matter of sufficient importance to warrant a statutory order, as such, being made. On the contrary, it could be argued that this would really be a matter of day to day administration within the Department. The only reason for involving the Minister is that he should retain some general control of the activities of the corporate bodies. Even though I am not fully convinced that it is appropriate to elevate such a simple procedure as the designation of a body to obtain certain services to the status of a statutory order, at the same time I am prepared to accept amendment No.1 in deference to the views of the Senators and the points which they have made.
In accepting amendment No. 1 I would mention that it is not really unusual that the Bill did not specify the manner in which the designation should be made. As I said last week, and I do not mind repeating it again, it is not very difficult to cite examples of statutes under which Ministers are given powers, to be exercised in an unspecified way such as to sanction, to consent, to approve, to designate, to certify, to grant or to determine. All these terms have been used in various statutes down through the years. But, where the statutes do not prescribe how powers are to be exercised, the practice, certainly in my own Department, is that the decision is recorded by way of a formal instrument. Generally it is made under seal in accordance with the Ministers and Secretaries Act, 1924. This kind of document is generally but loosely referred to as an order.
Some of the discussion last week centred around designating. The Bill itself does not say "designated by order"; it merely says "designate". The Minister could use his powers under the Ministers and Secretaries Act, 1924, to record a designation by "order" purely for the purpose of recording his decision, but it would not be necessary. However, that was the kind of document that I had in mind when I referred to that Act last week.
I am accepting amendment No. 1. I believe that amendment No. 2 does not therefore arise. I do not propose to accept it, as it is unnecessary. It is really just repeating the word "order" in the Bill. Amendments Nos. 5 and 6 are designed to give power to amend or revoke a designation order. I do not consider that such power will be required because the designation will, in itself, simply enable the bodies concerned to make agreements between each other for the provision of whichever services are being provided by the corporate body.
If, after a designation, the bodies do not make such an agreement or terminate an existing agreement, then it could be assumed that that ends the matter. Where agreements are reached between two such bodies, they could agree between themselves as to various terms which would be necessary for the successful operation of whichever services are to be provided, and they could include an agreement indicating circumstances under which the corporate body would terminate or would cease to provide the services that the designated body were seeking. I do not think it is necessary to include a power of amendment or revocation in the Bill. I take it the House will accept my efforts to meet, in some way, the reasonable points made by some Senators. I propose accepting amendment No. 1. No. 2 is unnecessary and I do not propose to accept Nos. 5 and 6.
I, of course, thank the Minister for having accepted amendment No. 1, which I honestly feel improves the Bill and clarifies the whole position in relation to the extension of the powers or the activities of bodies corporate after they have been established. I would indeed be in agreement with him that amendment No. 2 is really superfluous. Not being a legal gentleman and having neither the defects nor merits of those people, I felt it was safer to insert amendment No. 2 lest it might be felt by some of the parliamentary draftsmen to be a necessary one.
I am rather taken aback that the Minister would accept amendment No. 1 and not amendment No. 5 which I should have thought would be necessary if the Minister is, by order, to designate a body for whom services may be provided. My feeling was that at some stage during the provision of those services the body corporate or the body for whom the services were being provided might want the type of services or the extent of the services changed to such a material degree that the order by which the procedure had started might not allow for that change, and that consequently an amendment to the order would be necessary so as to enable the new services or the change in the provision of services to take place easily. However, if the Minister is quite convinced that amendment No. 5 is not necessary in conjunction with amendment No. 1, we should be prepared to accept that.
The only other thing might be that, all of us being fallible, it could happen that an order would be made allowing the body corporate to provide services for another body and the title of that other body could be wrongly named in that order. Where would the Minister find himself if he discovered that the actual drafting of the order had been faulty in its nature or had accidentally excluded one very essential part of the services which that body wanted to be provided for by the body corporate. My feeling would be that the power to amend was not there and consequently the fault in the order might exclude the provision of those services. The order would have to stand, because the Minister has pointed out that he does not feel amendment No. 6 to be necessary. Amendment No. 6 would give the Minister power to revoke the order. If he discovered that he had made a faulty order and had not got the power to amend it or to revoke it, then surely both the Minister and the body corporate and the body for whom services are being provided will feel pretty silly.
Having made those points I would again thank the Minister for having accepted amendment No. 1, which is the amendment which gives real effect to the argument that we made here last week and which we again presented today. The other amendments were, we felt, consequential upon it. I am just a little surprised that the Minister has been advised that amendment No. 5 is not necessary but I suppose we must accept this. I would again thank the Minister.
Like Senator Boland, I am afraid I am not familiar——
An Leas-Chathaoirleach
I must point out that neither is the Senator familiar with the proceedings of the House. We are on Report Stage and the Senator has concluded it. If it were necessary to clarify a point by question this would be permissible.
The question is in relation to subsection (10)——
An Leas-Chathaoirleach
There is a real difficulty here. The original ruling of the Chair was that amendments Nos. 5 and 6 were consequential on amendment No. 1 and they were in fact debated, though not in detail, with it. I think if points are now being raised, as they have been by Senator Boland's concluding speech and by Senator Jessop's intervention in regard to the purport of amendments Nos. 5 and 6, the Chair would be prepared to be indulgent and allow a separate debate on these narrow specific points when these amendments are called. Perhaps if we would dispose of amendment No. 1.
I protest against that ruling. After all, there was a very extensive Committee Stage debate on this. This is the Report Stage and surely we are not going to have this rehashed all over again?
May I take it that the Leader of the House will not object to the Minister dealing with the point raised by Senator Boland—the position arising in the event of a defective or accidentally defective order being made.
There is nothing in the order designating a certain body. It is a simple matter of amending or annulling.
An Leas-Chathaoirleach
I must direct the attention of the House to the fact that Senator Ó Maoláin made a quite proper point of order in objecting to my ruling. It is a matter for the House to decide whether it wishes now to dispose of all these amendments together, as was the original intention. If that is so I must confine the Minister to a brief answer to Senator Jessop's question and then close the matter. I have made the suggestion that in fact this question would now appear to warrant some discussion on its merits and I would be prepared to be indulgent in regard to the strict rules of order in regard to this but I am in the hands of the House as to what they wish to do.
Would it be possible to recommit this section of the Bill to enable general discussion on it.
It would not.
It is for the Cathaoirleach to tell us, not the Leader of the House.
An Leas-Chathaoirleach
My understanding is that under Standing Orders it is possible to recommit a Bill or any part of it at any time of the Report proceedings. A motion to that effect must be moved.
Under Standing Orders, certainly, if the House agrees. I object to it, though.
If there is any mistake in the original order then it is an invalid order and a new order can be made. The designation order merely designates additional bodies who can benefit from the services available. It would be a simple order merely giving the body's name.
An order could be perfectly valid but at the same time it might have an accidental mistake in it. I would be quite happy if the Minister agrees to look at this again before the Bill is taken in the Dáil.
I will.
Amendment agreed to.
Amendment No. 2 not moved.
An Leas-Chathaoirleach
It is suggested that amendments Nos 3 and 4 be taken together. It is a matter for the House to decide.
If I might follow the example of the Leader of the House— I am not quite sure whether it would be a good or a bad example—I have to protest at the suggestion because I feel that there is a material difference between amendment No. 3 and amendment No. 4. Amendment No. 3 relates to a group of people who are materially different in their status to the type of people who are affected by amendment No. 4.
It may help the Senator if I indicate to him that I propose to accept amendments Nos. 3 and 4.
It helps enormously. I move amendment No. 3:
In page 3 to delete lines 11 to 14. As the Minister has indicated he intends to accept both these amendments I will do no more than move them formally.
I should like to give some clarification as to my reasons for accepting them, because during the Committee Stage I defended the inclusion of both of these subsections, (7) and (8), mainly on the grounds that such provisions are normally included in legislation relating to semi-State bodies and have been so included for a number of years. Another point was that the principle of separating the Legislature from the Executive is a good one and that it should be followed or adhered to in most cases if possible. A further point I made was that if the Members of the Dáil or Seanad were members of certain types of corporate bodies, there could be a conflict of interest. Indeed, I am clearly of the opinion that in the kind of cases where I can envisage a corporate body being established, it would be inappropriate to have a Member of the Dáil or the Seanad acting as a member of such bodies. However, as the Bill is widely drawn and in deference to the view expressed by the Senators, as I have indicated I am prepared to accept the deletion of subsections (7) and (8).
Amendment agreed to.
I move amendment No. 4:
In page 3 to delete lines 15 to 18. I again thank the Minister for appreciating the validity of the case that was put to him on Committee Stage and indeed for coming in here and accepting amendments which he had more or less indicated he would not accept on Committee Stage. The House will probably agree with me that it is a very good thing to see a Minister on reflection agreeing to do something which he originally was not disposed to accept. Indeed, if we had Ministers doing this more often the passage of Bills would surely be speedier and the eventual result would probably be far better.
Amendment agreed to.
Amendments Nos. 5 and 6 not moved.
An Leas-Chathaoirleach
Amendment No. 7 has been ruled out of order.
I move amendment No. 8:
In page 5, between lines 23 and 24, to insert the following new section—
( ) Every establishment order or order made under sections 3 or 5 shall as soon as may be after it is made be published in Iris Oifigiúil.
Perhaps it is hopelessly out of order for me to say that I think a Minister's stature is increased by welcoming amendments that people have worked upon. This is a point to be remembered in relation to legislation on Committee and Report Stages. That is all I will say on that, irrespective of the Minister's attitude to this particular amendment. All I will say with regard to it is that it is in order to facilitate proof, if proof is required, of the orders to be made under this Act. The language, incidentally, is that taken from a Bill which was debated in the Seanad in July last and is the language of the Minister for Health's advisers. It relates to precisely this point and was proposed by the Minister for Health as a substitute for a very inadequate amendment that I had put down.
I should like to say to the Minister, too, that in the next Bill which the Seanad will be discussing, that is, the Fuels (Control of Supplies) Bill, 1971, which will be dealt with by his colleague the Minister for Transport and Power, it is provided in section 2, subsection (5) of that Bill that:
Every order made under this section shall, as soon as may be after it is made, be published in Iris Oifigiúil.
Therefore, if the Minister were to accept amendment No. 8, he would be running on parallel lines so far as orders are concerned with the next Bill the House is going to discuss.
The Bill as it stands provides in section 7 that every order under it shall be laid before each House of the Oireachtas. This requirement applies to an establishment order, an order under section 3, subsection (10), amending an establishment order, or an order under section 5 revoking an establishment order. With the acceptance of amendment No. 1, it will also apply to a designation order under section 3, subsection (2). Because of the requirement to lay the orders in question before each House of the Oireachtas the orders will be statutory instruments to which the Statutory Instruments Act, 1947, primarily applies. Accordingly, under section 3 of that Act, copies of the order must be sent to the National Library, the Law Library and certain other bodies and must be printed under the superintendence of the Stationery Office. Notice of the making of the order and the place where the copies thereof may be obtained must be published in Iris Oifigiúil. Therefore, I see no reason for publishing any of these orders in full in Iris Oifigiúil, when they are available freely to members of the public and Oireachtas Members generally. There is not much point really in going beyond the normal provisions of the Statutory Instruments Act——
Accordingly, it is not so important as in the one I was referring to.
——and, accordingly, I do not propose to accept the amendment.
Has the Minister included the revocation order?
Yes, all orders.
Amendment, by leave, withdrawn.
An Leas-Cathaoirleach
Amendment No. 9 has been ruled out of order.
Bill reported with amendments, received for Final Consideration and passed.
Bill to be sent to the Dáil.