Dáil Éireann díospóireacht -
Thursday, 7 Mar 1929

Vol. 28 No. 8

In Committee on Finance. - Constitution (Amendment No. 12) Bill, 1928—Second Stage (resumed.)

Mr. MacEntee

If my recollection serves me, when I moved the adjournment of the debate on this Bill I was endeavouring to point out to the House that this measure might be very undesirable in its consequences. I have refreshed my memory by a glance at the official report of the debate, and I remember that the Ceann Comhairle was good enough to say that when the debate was resumed he would explain to the House what the Bill was really about. Now I think that that is a task which should not properly have been left to the Ceann Comhairle. After all, so far as these Constitution Amendment Bills are concerned, though he has very seldom discharged it, that is a duty which properly belongs to the President who has made himself their sponsor before the Dáil. I remember that Deputy Flinn, in addressing the House on this matter, pointed out that this Bill was, as he described it, a pig which has been drawn from the poke in all its young and naked beauty. I do not think that that was exactly the attitude which the President took on the matter, but I think he came to the House and, with all the bashfulness of the erring housemaid, asked us to deal mercifully with the measure because it is only a little Bill. It is a little Bill, but I think it contains a very important principle. We are asked to confer in regard to a measure, on which the Ceann Comhairle has already adjudicated and has decided that it can be properly certified as a Money Bill, the power upon a comparatively insignificant number of Senators, first of all, to refer that Bill to a Committee, and thereby, if that body of Senators can sufficiently influence that Committee, to ensure that such measure will be held up for a prolonged period. That can be done under this Bill by the Committee coming to a decision that this Bill was not, in fact, a Money Bill. I submit that the fiat of the Ceann Comhairle of this House should be final in this matter.

Article 35 does already make provision that a Bill about which a dispute has arisen, as to whether it is or is not, a Money Bill, should be referred to a Committee on Privileges. Even though that proviso is already in the Constitution, I think that that proviso is wrong, and, from the point of view of the privileges of this House, is undesirable. Therefore, I contend that we should not make it any easier for the Seanad, or any section of the Seanad, to secure or exercise powers which are already more or less conferred by Article 35. I feel that if Article 35 were to be amended at all it should be amended in the direction of depriving the Seanad of the right to question a decision of the Ceann Comhairle of this House in relation to a Money Bill. I think that is the only way whereby at some future period, what Deputy Cooper referred to as a constitutional erisis, between this House and the Seanad, can be avoided. I believe that the sole purpose of the Constitutional amendments which the Government has introduced into this House is to give to the Seanad the capacity to enlarge its functions and its power under the Constitution and in relation to legislation, as those powers and functions are enlarged in the amended Constitution.

I feel that a time will come when the Seanad will seriously challenge the right of this House to absolute control in financial matters. In any event, I do not see that even the most modest of us would concede that men, ordinary, common, everyday individuals, men not in any way greatly demarcated or distinguished from ourselves—that in any body composed of such men, elected by us, there should reside any superior wisdom. I do not see either how even the vainest of us could imagine that our votes or our mandate could confer upon any body of individuals or any assembly a wisdom, a prudence and a judgment that are not conferred on the members of this House by the citizens of the State. Therefore, because neither the most modest nor the vainest among us would hold that there is inside that Seanad any greater sagacity, any greater prudence, any greater wisdom, any greater knowledge than is to be found in this House, I cannot see how we can concede to that body the right, which we hold as an inalienable right, of unfettered control over the purse——

The President

That is not in the Bill. The Deputy has not read the Bill. It is nearly bed-time, of course.

Mr. MacEntee

I must say I have tried to read the Bill, but as I wanted to make it clear at the beginning, I am not a political Solon. I have not been making laws from my cradle, as the President has been. I do not suppose there is any member of the House who will feel in regard to this Bill any better informed than I am. We came, more or less, comparatively inexperienced, into this Legislature, where men had been discharging the functions of law-makers for five or six years, and we have been plunged into a whirlpool of constitutional amendments. In view of our inexperience——

An Leas-Cheann Comhairle

The Deputy has experience enough to know that he is not dealing with this Bill.

Mr. MacEntee

I admit that I did wander for a little. It is almost impossible to be serious over this little Bill which, in all its young and naked beauty, is before the Dáil. I am sure that it is just possible that there may be some very wise and sagacious principle underlying this measure, but I submit it has never been explained to the House. There is one thing on the face of it that damns it, and that is the fact that a majority of the members of Seanad Eireann, present and voting at a meeting of the Seanad, at which not less than 30 members are present, may so resolve that a Bill which has gone through this House, with the certificate of the Ceann Comhairle that it is a Money Bill, shall be submitted to a Committee on Privileges. In order to do what? In order to put the Ceann Comhairle of the House on his trial.

The President

Oh, nonsense.

Mr. MacEntee

In order to decide whether or not the Ceann Comhairle of this House and this House itself has exceeded its powers under the financial provisions of the Constitution. That is the point. As I said, Article 35 of the Constitution is not, to my mind, a perfect Article. I believe it is an Article which never should have appeared. It is a remnant, I suppose, of the Gladstone controversy with the House of Lords as to what was and what was not a Money Bill. I am not going to argue the question as to what Gladstone said in 1882, but, at any rate, he did not say, as this Bill says, that sixteen members of the Seanad—"sixteen men on a dead man's chest"—shall have, in financial matters, or in quasi-financial matters, the same power as sixteen members of Dáil Eireann, and that is, when you contrast it, when you take proviso (a) of Section 1, which says:

two-fifths of the members of either House by notice in writing addressed to the Chairman of the House of which they are members so require, or

a majority of the members of Seanad Eireann present and voting at a sitting of Seanad Eireann at which not less than thirty members are present so resolve,

I wonder if the Bill is even more absurd than I thought it was.

Mr. Flinn

Impossible.

Mr. MacEntee

"A majority of the members of Seanad Eireann present and voting at a sitting of Seanad Eireann"——

An Leas-Cheann Comhairle

The Deputy must not indulge in such repetition.

Mr. MacEntee

I beg your pardon. "A majority of the members of Seanad Eireann present and voting at a sitting"——

An Leas-Cheann Comhairle

The Deputy must not indulge in such repetition.

Mr. MacEntee

——"at which not less than thirty members are present so resolve." I am going to ask the President a question: Can there be a majority of the members of Seanad Eireann present and voting——

An Leas-Cheann Comhairle

If the Deputy attempts to repeat that again I shall have to ask him to resume his seat.

Mr. MacEntee

I am trying to see —I understand there are sixty members.

An Leas-Cheann Comhairle

The Deputy is ignoring the Chair. I allowed the Deputy to read part of the section. The Deputy has attempted to read it three times.

Mr. MacEntee

I am going to abandon that, but I would like the Leas-Cheann Comhairle to look at that particular section of the Bill. But I am wondering if there could be a majority when there is only a provision that half the House may be present. I am just wondering how there could be a majority, and how the President is going to get his majority in these circumstances. If there was a body with 40 members, and if it was provided that there should be a majority when only 20 of these members were present, I think it would be a nice legal point for the Supreme Court to adjudicate upon whether there was a majority when only 20 members were present, and when they asked that a certain thing should be done. And yet I think that is the effect of proviso (b) of Section 1. Now, I may be wrong, quite possibly I am, but I think the President ought to make that point clear to the House. There is another matter. Supposing we get this Committee, and supposing we get three members of Seanad Eireann, three members of Dáil Eireann, and a Chairman, who shall be the senior Judge of the Supreme Court, what happens during the period that that Committee is being got together? During the period that it is sitting in judgment upon, as I repeat, the Ceann Comhairle of this House, and upon this House, what happens to the Bill? Is it to be held up for the period of time in which the Seanad can hold up ordinary legislation or does the certificate of the Ceann Comhairle still remain effective, and does the Bill pass into law in the ordinary way within the specified period? I can foresee circumstances in which a deadlock might arise in that Committee. If we had a very grave constitutional conflict between either of these Houses a Judge of the Supreme Court might not wish to give a decision in the matter.

Mr. P. Hogan (Clare)

He would want to know who would win.

Mr. MacEntee

Exactly, and that is often a very great deterrent in judicial decisions. If our Judge in the Supreme Court, playing for safety, decides that he is not going at least to estrange his friends of the Seanad, what power is there in this Bill, or under any other Article of the Constitution, to compel him to give a decision——

Mr. J.J. Byrne

Is the Deputy in order in saying that a Judge of the Supreme Court could play for safety.

Mr. MacEntee

I am speaking of a hypothetical Judge.

Mr. Everett

More than Judges are playing for safety. Some people are playing for time.

Mr. MacEntee

I feel that we ought to have some information upon that point. It is very possible, in fact in my present frame of mind I believe it is extremely probable, that I do not entirely understand this Bill, but I would like to repeat, even though it does make the President smile, that that after all, is not my fault. It was he who should have explained this measure to the Dáil, and I am beginning to believe, in view of the silence which he has uniformly maintained on every one of these Constitutional Amendment Bills, that he himself is in no better plight than any other member of the House: that one of the reasons why he has not, in introducing any single one of these measures, given us a single word of explanation is that he himself is incapable of understanding them. We remember how they all came out of that miraculous dark closet, and how they were thrust upon us, and we were told that these Bills were the results of the Committee which had been set up to consider constitutional amendments, and that we were to take them from his hands, as if they were the works of inspired authors. He has not permitted the deletion of one comma, the amendment of one line of these Bills, and, at the same time, as I have said, he has not explained a single one of them. I admit that I am befogged as to the real effects of this Bill, but I believe that if I am befogged the President is snowbound.

The President

This Bill is based on one of the recommendations of the Joint Committee which considered some amendments to the Constitution, and it happens that this particular amendment was not objected to by members of the Party to which Deputy MacEntee belongs and of which he is such a very brilliant ornament. If there was any doubt in anyone's mind as to the possible future leader of that Party, I think the speech we have just listened to would convince us that the tenure of office of any of his superiors is likely to be very short. Now, the position, as far as I can judge it, is that there is a great deal of criticism of the Seanad as such by Deputies opposite, but there is no Party in this State, no Party that I ever heard of in any other State, which would require the assistance of a second Chamber more than that body over there. Three or four of the recommendations which they supported, some of which they fathered—almost gave birth to—are ones which, on subsequent reflection, they found it necessary not to agree to.

Mr. de Valera

That is not so.

The President

I have the document here before me.

Mr. de Valera

No document will prove that.

The President

The document will prove that there was the age of thirty years which the Deputy advocated and subsequently abandoned.

Mr. de Valera

I know, but that is not what the President referred to recently.

The President

This particular one was not objected to by the Deputy, and his Party has been railing at us here and questioning it without understanding it, without knowing what it is. Every single speech I have listened to from Deputies opposite indicates to me quite clearly that they did not understand what the meaning of this amendment to the Constitution is at all. In essence, the meaning of this amendment is that where the Seanad had three days in which to object to the certification of a Bill as a Money Bill, that three days is now extended to seven days. The other alteration which permits a certain number of members of the Seanad in a House consisting of not less than thirty members to take certain action is not a really vital consideration at all; the really vital consideration is the seven days. A Bill passes this House on Friday. I put it to the common-sense of anybody that three days from Friday, with Senators living all over the country, is not fair. Anybody would admit on a moment's consideration that there is reasonable ground for increasing the number of days.

What is meant by a Money Bill? The case has been mentioned by several Deputies on those benches who do not understand this Bill that it is an attempt to take from the Dáil certain power which it has now got. It is no such thing. There is no interference whatever with the power of the Dáil; the power of the Dáil remains absolutely supreme over money matters. What is a Money Bill? Giving the Seanad the right to object to that particular title being affixed to a Bill is not interfering with the power of this House. Deputy Cooper very intelligently explained, but the explanation was not accepted as it should have been, one particular example of what a Money Bill might be. He mentioned a case where a Bill might be introduced to reduce the salary of Senators from £360 to nothing, with a second clause that the Seanad be from that date abolished. Now, the second item would detract from the character of the measure in so far as its title to be regarded as a Money Bill was concerned, and as I said before, if there be any Party which require a Seanad more than Deputies opposite I do not know it. They ought to consider more carefully before they announce, No. 1, that we must abolish the Seanad and, No. 2, that we must abolish the Seanad as at present constituted. Only yesterday I received an amendment to a motion which was put down by some member of the Fianna Fáil Party some months ago—it may not appear on the Order Paper—showing that they never can make up their minds, apparently, on any subject. The Seanad is a most necessary thing for people who are in that frame of mind. But I am not arguing about keeping the Seanad in respect of that. I want to get into the mind of Deputy MacEntee, that rising hope of the Fianna Fáil Party, what the meaning of this measure is. The certification of a Bill as a Money Bill is not by any means an easy matter. I have known occasions when I am positively certain the Ceann Comhairle was very much puzzled as to whether or not he could decide that a Bill was a Money Bill. And there is a case on record in which the Seanad, in the consideration of a Money Bill, sent down a recommendation which had previously been passed by this House and which this House afterwards rejected but which it subsequently accepted from the Seanad. I believe that if Deputies opposite had as much sense then as they have now they would have supported the Seanad in that particular view, having regard to what I have heard from them since.

The definition of a Money Bill contained in Article 35 of the Constitution is borrowed from the British Parliament Act of 1911. Under that Act the Speaker of the British House of Commons consults two members who are nominated on his panel of chairmen. Here there is no such consultation; the Ceann Comhairle has to make up his mind for himself, and as I have said before, there are considerable difficulties in many cases in connection with the Ceann Comhairle being able to certify that a Bill is a Money Bill, and great care has to be exercised by the Executive, in introducing a Bill which it regards as a Money Bill, to keep out of it any matter which would detract from that title or which would prevent the Ceann Comhairle from giving his certificate. I suppose it is unnecessary for me to enter into an explanation of the difference between a Money Bill and an ordinary Bill, but if I were as much disposed as Deputies opposite to occupy the time of the House I could go into that matter. I do not think it is necessary. Deputy Flinn, Deputy Derrig, Deputy MacEntee, and, to a very considerable extent but not perhaps as much, Deputy Lemass totally and entirely misunderstood and misread this measure. Now, under the Parliament Act in England there is no provision for an appeal from the Speaker's ruling. Here there is and it is not an appeal which is confined to either House. There are certain provisions in respect to this House, and holding up a measure about which there is a doubt might in many cases be of considerable benefit to the country. I stand for absolutely the fullest and completest control by the Dáil over money matters, but if an Executive or if a Ceann Comhairle were so disposed as to get through a Bill under the title of a Money Bill which was not in essence a Money Bill I would not stand for it. I have not heard from any of the Deputies opposite whether they would stand for that. It would appear to me that their view was that if an Executive Council, or if a Ceann Comhairle, acting either in common or separately, said that a Bill was a Money Bill, whether it was or not should not be left to anybody else to decide, I do not subscribe to that. It is really a question of fact, and on a question of fact there may be a difference of opinion. Is there any objection to the ventilation of these opinions, to having that question decided? The question for decision falls for the consideration of three members from each House, with a Supreme Court Judge. The power, of course, of certifying a Bill is not, as Deputies opposite would appear to have thought, or which one could infer from some of their speeches, in the Dáil itself; it is in the Ceann Comhairle. I think that now, with that very short explanation, Deputies opposite will have much greater freedom in making up their minds as to whether or not they can support the Bill.

Mr. de Valera

Would the President deal with the objection raised by Deputy MacEntee with respect to the fact that there is no time limit fixed?

The President

The point with regard to that is this: When explaining a Bill a Minister does not lay down the law. Nobody could do so. I think I explained that here once before. The position, as I see it, is that a Bill is certified by the Ceann Comhairle to be a Money Bill. If the Bill becomes law, and within seven days the necessary objection to its being regarded as a Money Bill is received from the Seanad, a Committee is set up. If the Committee allows twenty-one days to elapse before they give a decision, and if I am President of the Executive Council, I will forward that Bill to his Excellency the Governor-General for his signature.

Mr. de Valera

Where have we got that anywhere?

The President

Can the Deputy tell me where it is not?

Mr. de Valera

I want to see where it is. I take it that the responsibility is on the President, who wants to have this Bill passed, to make it clear where we have a time limit.

The President

I explained it here the last day for Deputy O'Kelly. "...every Money Bill shall be sent to Seanad Eireann for its recommendations, and at a period not longer than twenty-one days after it shall have been sent to Seanad Eireann it shall be returned to Dáil Eireann, which may pass it, accepting or rejecting all or any of the recommendations of Seanad Eireann, and as so passed or if not returned within such period of twenty-one days shall be deemed to have been passed by both Houses."

Mr. de Valera

That is assuming that it is a Money Bill, but we have here in this case a controversy as to whether it is or is not a Money Bill, and we want to know where we are to get a decision as to whether it is or is not. I admit if it is decided that it is a Money Bill——

The President

That is a decision that could only be had in the courts.

Mr. de Valera

We are making the law here.

The President

I have told the Deputy that if that Bill be not declared by the Committee of Privileges to be a Money Bill within twenty-one days, as long as I hold office as President of the Executive Council his Excellency's signature will be placed on it.

Mr. de Valera

I think that is a very poor argument to put forward.

The President

It is not an argument but a statement of fact.

Mr. de Valera

That statement does not satisfy us at all. The President says that he will take certain action that will satisfy us. We want to have the time for decision in black and white and not simply be depending on the good-will of the President.

The President

Would the Deputy show me where it is wrong?

Mr. de Valera

I asked the President to show us where there was any particular time limit in the case of a Money Bill. The President quoted the Article about the 21 days within which the Bill is to come down, but if there is not a decision as to whether it is or is not a Money Bill——

The President

Then it remains a Money Bill.

Mr. de Valera

Would the President tell us where is that?

Mr. MacEntee

Where is that provided for in the Constitution?

The President

In Article 35.

Mr. de Valera

The President is putting this Bill through, and I submit that he ought to satisfy any reasonable doubts in our minds.

The President

I assure the Deputy that I never expected at any time to be able to satisfy everybody.

Mr. de Valera

In other words, you are depending on your majority whether right or wrong.

The President

Not at all.

Mr. de Valera

I remember that the President, in another connection, tried to put through in the face of the Dáil that which common sense showed was completely wrong. It was pointed out to him on that occasion that the word "not" had been omitted, completely changing the purpose intended. Yet he wanted the whole Dáil to pass it because some authority told him that it was right, but he would not go and examine it and see that the word "not" had been omitted.

The President

The Deputy is absolutely wrong in his recollection.

Mr. de Valera

Certainly not.

The President

The Deputy is referring to an incident that occurred in 1922, and it is out of order.

An Leas-Cheann Comhairle

I am now going to put the question.

Mr. de Valera

I think it is most unfair to the House that the President should try and put through a Bill like this when there is a definite objection raised to a point that ought to be met. The President has put it that a Money Bill has to come back within 21 days. That is all right if it is a Money Bill, but we have nothing to show when it has not been decided——

The President

If it is not decided in 21 days it is a Money Bill.

Mr. de Valera

That is the President's statement. Where is the authority for it?

Question put.

The Dáil divided: Tá, 62; Níl, 61.

Tá

• Aird, William P.
• Beckett, James Walter.
• Bennett, George Cecil.
• Blythe, Ernest.
• Bourke, Séamus A.
• Brodrick, Seán.
• Byrne, John Joseph.
• Carey, Edmund.
• Cole, John James.
• Collins-O'Driscoll, Mrs. Margt.
• Conlon, Martin.
• Connolly, Michael P.
• Cooper, Bryan Ricco.
• Cosgrave, William T.
• Daly, John.
• Davis, Michael.
• De Loughrey, Peter.
• Doyle, Peadar Seán.
• Duggan, Edmund John.
• Dwyer, James.
• Egan, Barry M.
• Esmonde, Osmond Thos. Grattan.
• Fitzgerald, Desmond.
• Fitzgerald-Kenney, James.
• Gorey, Denis J.
• Haslett, Alexander.
• Hassett, John J.
• Heffernan, Michael R.
• Hennessy, Michael Joseph.
• Hennessy, Thomas.
• Henry, Mark.
• Hogan, Patrick (Galway).
• Holohan, Richard.
• Jordan, Michael.
• Kelly, Patrick Michael.
• Law, Hugh Alexander.
• Lynch, Finian.
• Mathews, Arthur Patrick.
• McDonogh, Martin.
• McFadden, Michael Og.
• McGilligan, Patrick.
• Mongan, Joseph W.
• Mulcahy, Richard.
• Murphy, James E.
• Nally, Martin Michael.
• Nolan, John Thomas.
• O'Connell, Richard.
• O'Hanlon, John F.
• O'Leary, Daniel.
• O'Mahony, Dermot Gun.
• O'Sullivan, John Marcus.
• Reynolds, Patrick.
• Rice, Vincent.
• Roddy, Martin.
• Sheeny, Timothy (West Cork).
• Thrift, William Edward.
• Tierney, Michael.
• Vaughan, Daniel.
• White, John.
• White, Vincent Joseph.
• Wolfe, George.
• Wolfe, Jasper Travers.

Níl

• Allen, Denis.
• Anthony, Richard.
• Blaney, Neal.
• Boland, Gerald.
• Boland, Patrick.
• Bourke, Daniel.
• Brady, Seán.
• Briscoe, Robert.
• Broderick, Henry.
• Buckley, Daniel.
• Carney, Frank.
• Cassidy, Archie J.
• Clancy, Patrick.
• Clery, Michael.
• Colbert, James.
• Cooney, Eamon.
• Corkery, Dan.
• Corish, Richard.
• Corry, Martin John.
• Crowley, Fred. Hugh.
• Crowley, Tadhg.
• Davin, William.
• Derrig, Thomas.
• De Valera, Eamon.
• Doyle, Edward.
• O'Leary, William.
• O'Reilly, Matthew.
• O'Reilly, Thomas.
• Ruttledge, Patrick J.
• Ryan, James.
• Sexton, Martin.
• Everett, James.
• Fahy, Frank.
• Flinn, Hugo.
• Fogarty, Andrew.
• Gorry, Patrick J.
• Goulding, John.
• Hayes, Seán.
• Hogan, Patrick (Clare).
• Holt, Samuel.
• Houlihan, Patrick.
• Jordan, Stephen.
• Kerlin, Frank.
• Killane, James Joseph.
• Killilea, Mark.
• Kilroy, Michael.
• Lemass, Seán F.
• Little, Patrick John.
• McEllistrim, Thomas.
• MacEntee, Seán.
• Moore, Séamus.
• Morrissey, Daniel.
• Mullins, Thomas.
• O'Connell, Thomas J.
• O'Dowd, Patrick Joseph.
• O'Kelly, Seán T.
• Sheehy, Timothy (Tipperary).
• Smith, Patrick.
• Tubridy, John.
• Walsh, Richard.
• Ward, Francis C.

Tellers:—Tá: Deputies Duggan and P.S. Doyle. Níl: Deputies G. Boland and Allen.

Committee Stage ordered for Wednesday, March 13, 1929.

Motion declared carried.

The Dáil adjourned at 10.15 p.m. until Friday 8th March, 1929.