I move that this Bill be now read a Second Time. It will be in the recollection of the House that, when the Presidential Elections Act was under discussion, a question arose about the powers of nomination that might be conferred on the person styled a commissioner acting for, and exercising the functions of, a county council that had been suppressed. It was the view of certain members of the House that it would be most undersirable that the Presidential Elections Act should contain the power, which might be used by a commissioner acting for a county council, to nominate or assist in the nomination of candidates for the position of President. I was advised that there was a doubt as to whether a commissioner so acting could exercise such functions. It was my view not only that there was not a doubt about it, but that it was unlikely that any commissioner, exercising the functions of a county council, would use such powers even if the Act did purport to give such powers. However, the House—or at least certain members of the House—expressed the view strongly that there ought not to be any doubt about that matter and that it ought to be made definite and clear that a commissioner should not seem to have the power to act in the name of a county council. It is with a view, accordingly, to amending Section 72 of the Local Government Act of 1925, that this short Bill is being introduced. I think that it makes the position definite and clear, and it does not attempt in any way to amend the Presidential Elections Act, nor does it seek to amend in any way the Constitution. It does not seek to do that in any way. Certain amendments were put in here—or at least were put on the Order Paper by some Deputies— seeking to take the power, that it was suggested would be in the hands of the commissioners, if the Presidential Elections Bill were passed, away from them by way of amendment. I think, Sir, that you will remember that these amendments, by your ruling, were not in order. However, I had the matter examined closely, at that time, by the legal advisers of the Government, and they said that if there were a doubt, the way to deal with it would be by amending Section 72 of the Local Government Act of 1925. This Bill is the result of their advice, and this Bill proposes to make such amendments as may be necessary to remove any such doubt.
In Committee on Finance. - Local Government (Nomination of Presidential Candidates) Bill, 1937—Second Stage.
There are a few points that I should like to make, Sir. First of all, however, I thoroughly agree with the Minister that it was the desire, if it could be effected, of all Parties in the House that, on what practically are nominees of the Local Government Department, the Minister should not have the right that county councils have not under the Constitution. I think it was Deputy O Briain who mentioned, on the last day we met, that this Bill is not violating the Constitution, but that it is purporting to amend it. Is it not, in fact, amending it? Is not the form of the Bill that certain powers are conferred on every county council by the Constitution? Will the Minister admit that?
Yes.
But the Minister cannot take these powers away without amending or violating the Constitution. Here he speaks of transferring the powers. Where, then, is the power that is reposed in the county councils by the Constitution? Where is that power? Is it not transferred to the commissioner? Does it remain in the county council? If it does not, I suggest that, despite the statement the Minister has just made, to the effect that this is not purporting to amend the Constitution or the Presidential Elections Act, it is, in fact, either violating the Constitution or amending it, possibly without purporting to do so; and I hold that it is highly undesirable to amend it in that way, or else that it is violating the Constitution. Now, I have no great objection to amending the Constitution at this early date, but I ask whether or not it is possible to amend an Act that is not already in force. However, I do not wish to raise such a point as that, but I am afraid that, every day, we will be up against many such points in regard to the Constitution. I am afraid that there is not a point with regard to the Constitution in respect of which anybody cannot say that it can be amended, and then the Government says, in effect: "Well, we forgot that point, but it is only a matter of drafting, and it can be amended."
Here, however, we are up against a case where it actually means amending the Constitution. I cannot see what else can be done—either the Constitution must be amended or it must be violated. The Constitution confers certain rights and powers on county councils, and unless you amend the Constitution these rights are still there. They are not transferred from the county council to a commissioner. Where, then, are they?
The Minister to conclude.
Before the Minister concludes, Sir, I should like to say that it does appear that the point raised by Deputy O'Sullivan has a great deal to be said for it. Under the Constitution certain rights are conferred on county councils. The Minister says, in effect, that this Act is not going to transfer, as it were, these powers to the commissioners. In whom, then, does the right or the power repose? Does it repose in the county council, or is the county council the custodian of those rights? If so, has the Minister the power to withhold them from a county council, or from a county—in other words, from the people of a county— and can the Minister exercise those rights of the people, in their behalf, in this respect? I think that if the Minister submits in a Bill of this kind that he has the right to withhold certain rights or powers from the people, so that somebody else must operate those rights—either the Minister himself or somebody else—the easiest way to do so would be by an amendment to the Constitution. After all, the Minister must know that that particular section of the Constitution is continuing a right of the county councils, and are we going to have this position handed down, year after year: that the Minister, by an Act of this kind, will feel that he has the right to cut across the activities or the powers of the Constitution, and to restrict its activities and powers, and to say, in effect, that people in certain counties have no rights in this matter of presidential elections? I think that the only way to deal with it would be to bring in an amendment to the Constitution and, in that way, set the whole matter right. It is very debatable, when we have this thing done—if we have done anything at all—whether the people concerned have any rights under the Constitution.
In connection with this matter, I should like to ask the Minister whether or not he would consider the question of dropping the Constitution entirely. The general tendency, it seems, is to send down a manager instead of using a corporation or a county council. I think that this is an utterly foolish position, and if it is allowed to remain in the Constitution, then, why not abolish county councils entirely? Why have them at all?
The Minister to conclude.
I have not any pretentions to being a Constitutional lawyer. I do not know whether Deputy O'Sullivan has any more pretentions than I have—perhaps he has —to being a Constitutional lawyer. At any rate, I have consulted those who have had long experience in these matters and who are fully qualified to deal with them. I have taken their advice and the advice given to me is that this is the way to get over the difficulty that was adverted to in the House. I myself do not see much of a difficulty because I do not foresee any commissioner ever attempting to use such powers, even if he was sure he had them. But there was doubt in the minds of several Deputies who spoke on this matter and who evidently felt very strongly that, even if there was only a slight doubt, that doubt ought to be removed and it ought to be made clear that a commissioner could not have such powers. That doubt is removed by this Bill in the way that I have been advised by competent persons is the proper way to remove that doubt. It is not even obliquely an attempt of any kind, and cannot be described as an attempt to amend the Constitution. It is an amendment of Section 72 of the Local Government Act, 1925. County councils have been, and probably will be in the future, as in the past—if they are not all abolished as Deputy Gorey would probably like to see happen—
It was you did that.
They may from time to time be deprived of their functions by the Minister for Local Government of the day. When a county council is non-existent, whatever the reason may be, when it is abolished and deprived of its functions, whatever powers it might have under the Presidential Act are, I say, non-existent also. The Minister has power under the Local Government Act to abolish a county council. He has power to give the functions and powers of that council to one or more individuals. He can reserve some powers. He need not give all the powers, functions, and authority of the county council to that commissioner or body of commissioners. He can and does give certain-powers. Acting as Minister, I have conferred certain powers from time to time, and at different times, on officials acting as commissioners carrying on the administrative functions of county councils. There is full authority for doing that under the law. I would, therefore, answer the question raised by Deputy Brennan: can the Minister withhold certain rights from the people? This Parliament has given the person functioning as Minister for Local Government power and authority to abolish a county council and, giving him that power, they have given to the Minister power to withhold from the county council, elected by the people, certain rights and privileges. He has the power, and it has been frequently exercised. I think that the doubt will be removed when this Bill is passed, as I think it will be passed by the House, and I do not think there is any necessity to debate the matter further.