I move:
That Seanad Éireann takes note of the First Report of the Select Committee on Statutory Instruments.
I thank the Leader of the House and the Government Chief Whip for affording time to debate this motion so soon after the report was presented to the Seanad.
It is particularly important, in that the Select Committee have not reported for ten years. I will refer to the background and to the importance of this committee. Much of our legislation nowadays comes by way of statutory instruments which are made under legislation passed by the Oireachtas and the Select Committee on Statutory Instruments of this House was set up in the early days of the State to oversee the form and content and the method of presentation of statutory instruments, and it has brought order where formerly chaos reigned. The fact that the statutory instruments are now presented in a uniform manner and obey certain conventions is mainly due to the work of the Select Committee. There is no corresponding committee in the other House, and so the importance of the work of this committee is underlined. If one looks at the operations of previous committees one should pay tribute to two former distinguished chairmen, the late George O'Brien and W. A. W. Sheldon, who, by their efforts, established the precedents under which the Select Committee now operate.
The fact that there has not been a report for ten years is due to two things in the main, first, the lack of staffing for the committee's work and, second it must be acknowledged a certain lack of drive by Members of this House. A great deal of work is required to service the committee as the Members of the House will see from the report. Over 300 statutory instruments were considered during the period of the operation of this committee so far. Each one takes a great deal of effort, time and expertise. On behalf of the committee, I pay tribute to the staff member who carried out most of the work for her expertise and attention to the work of the committee.
The report that was presented to each Member of the House does not contain in full the appendices which deal with the correspondence between the Select Committee and the instrument-making bodies. When the committee feel that, for some reason or other, the attention of Seanad Éireann should be drawn to an instrument, before they do so they enter into correspondence with the instrument-making body, Department or other authority. The correspondence can often be long and detailed and the practice of the committee is to ask the instrument-making body for an explanation of the apparent deviation from procedure. The full report plus appendices comes to over 100 pages. So we felt that, perhaps, we would spare every Member of the House the appendices. They are available should anyone wish to consult them.
During the period in which the committee operated, 333 statutory instruments were examined of which 297 did not call for comment. The grounds on which the instruments can be examined are set out in page 1 of the report under the heading Resolutions Reference and no instruments are being brought to the attention of the House under the first three grounds. Under ground No. 4 that there was a delay in laying the instrument after it was made, twenty-one statutory instruments are brought to the attention of the House. I would like to quote from the report of the previous committee which considered this defect.
‘Regulations shall be laid before each House of the Oireachtas as soon as may be after they are made and, if a resolution annulling the regulations is passed by either House within the next twenty-one days on which that House has sat after the regulations have been laid before it, the regulations shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder'. Where this provision applies, a member of Seanad Éireann may put down a motion for annulment, only after the instrument has been laid, although the instrument will have been in force from the date of making. It follows that the element of control retained by the Oireachtas depends, for its effectiveness, on the laying of instruments within the shortest possible period after making.
To state the extreme case, it is possible to have an instrument made, under which irrevocable action may be taken, before the Oireachtas will have had an opportunity of considering the instrument.
Previous Select Committees have taken the view that a period of seven days between the making and the laying of an instrument is excessive and they have directed the attention of the Seanad to any instrument which has shown a gap of more than seven days between the making and laying of the instrument. There are 21 instruments which fell into this category.
On ground (v) "That for any special reason its form or purport calls for elucidation", five instruments are brought to the attention of the House, due to the fact that there is not an explanatory memorandum, which does not form a legal part of the instrument but which, particularly in the case of complex and technical instruments, sets forth in laymen's terms what the instrument actually means. The omission of these explanatory notes was due to oversights by the Department or the instrument-making authority concerned. On a previous occasion the Select Committee recommended, and the Minister for Finance issued the recommendation to all instrument-making bodies, that such an explanatory note should be added at the end of each instrument. Five instruments failed to have an explanatory note and we direct the attention of the House to this.
For another reason, the attestation of the schedules which appear in connection with certain instruments, five instruments are to be noted. In these instruments the schedules appear below the signature of the Minister involved in giving his attestation. While the schedules are legal parts of the instrument, previous Select Committees have taken the view that the Minister's signature should appear underneath the schedule and in no case above the schedule concerned. Five such instruments are brought to the attention of the House. In the case of one instrument where the attestation signature of a consenting Minister, in this case the Minister for Finance, is required, it was felt that the Minister's signature should appear on the instrument as well as the signature of the Minister by whose Department the instrument was issued. This does not invalidate the legality of the instrument but it has been felt by previous Select Committees that it would be best that all the signatures of all the Ministers involved should appear on the instruments.
In the case of three instruments the committee feel that there should have been more direct citation of statutory authority. The instruments are made under certain Acts of the Oireachtas and the Select Committee feel that the actual citation of the specific Acts under which the instruments are made should be given in every instrument.
Previous Select Committees have taken the view that blanket phrases of citations should always be avoided. The phrase which has caught our eye is "any and every power in this behalf enabling". We take the view of previous Select Comtees that such phrases should be avoided and specific citations to specific Acts of the Oireachtas should be accurately given in every single instrument. The three instruments involved were made by the Incorporated Law Society in one case and the Circuit Court Rules Committee in two cases. The Incorporated Law Society have agreed with our recommendation that they discontinue the use of such blanket phrases. Regrettably the Circuit Court Rules Committee have not yet agreed with the committee's recommendation. They point out that this phrase has been used previously and they do not see why it should not be used again. The committee do not take this view and do not believe that bad practice should necessarily be followed and they intend to pursue the matter with the Circuit Court Rules Committee. They wish to draw the attention of the House to three statutory instruments under this heading.
Finally, on ground (vi) the Select Committee consider that one particular instrument should be drawn to the attention of the House on the grounds of defective drafting. One might say that it is politically sensitive because it is Statutory Instrument No. 16 of the Broadcasting Authority Act 1960, (Section 31) Order, 1980 under which the Minister for Posts and Telegraphs can direct that spokesmen of certain organisations be restrained from broadcasting on RTE. The section which in the opinion of the Select Committee rendered the Statutory Instrument meaningless is as follows:
Radio Telefís Eireann is hereby directed to refrain from broadcasting any matter which is an interview or report of an interview, with a spokesman or with spokesmen for any other or more of the following organisations, namely,...
The offending word is "other". Of course the legality of the instrument derives not from the copy which is laid before the House. It derives from the actual instrument which is in the possession of the instrument-making body and the committee directed me as chairman to inspect the original. The original was found to be correct. The phrase is, of course, "any one or more" and that was the phrase in the original. The instrument itself was correct but the committee direct the attention of the Seanad to this particular instrument on the grounds that the Department of Posts and Telegraphs failed in their duty to lay an accurate copy before the Houses of the Oireachtas.
