In connection with the entry on to-day's Order Paper relating to the Adoption Bill, 1952, which has now been sent back by the Seanad, I conceive it my duty to draw the Dáil's attention to the fact that it is now 142 days since this Bill was sent to the Seanad after being passed by the Dáil, that is, 52 days in excess of the stated period of 90 days prescribed by Article 23 of the Constitution. This overholding of the Bill by the Seanad would appear to call for the consideration of the Dáil owing to its constitutional implications.
Adoption Bill, 1952—From Seanad. - Statement by the Ceann Comhairle.
I think I should say that the view of the Government is that the Seanad should have requested the consent of the Dáil to a longer period for the consideration of the Bill, if that was required. I am advised, however, that there is no constitutional objection to the Dáil considering the amendments proposed by the Seanad and accepting them, as I understand the Minister for Justice intends to propose.
Does that opinion which the Government has got mean that this Bill will not have to go back to the Seanad or that the Dáil will not have to extend the time?
The position is that the Bill has come back from the Seanad with the amendments after the expiration of the constitutional period. It is clearly open to the Dáil to enact the Bill by resolution without dealing with the Seanad amendments. I am advised it is also open to the Dáil to consider these amendments and to accept them and thereby complete the process.
Is the Government satisfied that that is constitutionally possible without extending the time under Article 23, clause 2 of the Constitution? It would appear from the reading of that Article that it would be necessary to extend the time formally and possibly, as a matter of precaution, to send back the amendments to the Seanad.
Would the request have to come from the Seanad?
I think not. I am not giving any opinion on these matters here, but I would suggest that the position under Article 23 is that the Bill has not been passed in accordance with Article 23, clause 1, sub-clause (2). Therefore, it is a Bill that is in the air. To bring it down to earth again, it might appear to be necessary that an arrangement should be made between the Dáil and the Seanad to extend the time. That is a matter on which I should like a direction. I should like to know whether, under this Article of the Constitution, the Dáil can ignore the fact that the Seanad has not done anything about the Bill within the stated period.
The advice we have got is that the Dáil can now, by resolution, deem the Bill to be passed in the form in which it left the Dáil, but there is nothing in the Constitution which requires the Dáil to exercise that power, nor is there anything in the Constitution which precludes the Dáil, if it so desires, from considering and accepting the Seanad amendments at this stage.
Whatever the constitutional lawyers may advise on the matter, arising out of the Bill the whole lives of individual citizens may be seriously conditioned. It would be highly disastrous if, after ten or 15 years, somebody raised a constitutional issue in regard to one individual child and that its whole life would be torn up as a result thereof. Would it not therefore be wiser for the Minister for Justice to incorporate in a new Bill the amendments which he proposed to accept, on the understanding that if he will allow this Bill to be discharged from this House, the House will provide him with every facility to get the Bill with the amendments proposed in it through with all despatch.
Presumably, the Seanad would do the same thing, thus putting beyond all future possibility of constitutional doubt the validity of this Act inasmuch as it affects the lives of individuals who might be gravely victimised in years to come.
The Government have considered the matter carefully and have taken all appropriate advice. They are satisfied that there is no reasonable doubt that it is within the power of the Dáil to deal with the amendments which came from the Seanad and to incorporate them in the Bill.
Is it not clear that that can be tested in the courts sooner or later by some parties who will feel very keenly in connection with the matter of the adoption of a child?
It could be tested in an intestacy case.
Some individual is going to get caught up in the machinery of an immense piece of litigation which will go to the Supreme Court to determine whether or not what we do here does or does not transgress the Constitution. I do not think there would be any difficulty if the Minister for Justice were to bring forward a new Bill with the amendments which he proposes to it, and were to discharge the present Bill. We could put it through in less time than it would take to deal with this resolution. That would put the matter beyond all reasonable doubt.
I do not want in any way to cast the smallest doubt on the validity of the opinions which the Government got on this constitutional matter. There is something in what Deputy Dillon says. I think, however, that the procedure which he suggests is not necessary. That the constitutional point will be tested some time by habeas corpus in the case of the custody of an infant is almost certain. We can adopt a procedure which will prevent litigation—let me say, far be it from me to prevent any litigation— but we can prevent it in the interests of the public, and make it clear beyond all doubt that that point cannot be raised. I suggest that we now pass a resolution extending the time, get the Seanad to agree to that extension of time, and pass the Bill this evening. The whole thing could be done to-night, and then no one could ever raise the question. As long as it depends only on the opinion of constitutional lawyers, however eminent, there will be always some one to get up and say: “You can say this, that and the other against it”.
The elaborate procedure suggested by the Deputy has not been considered, and perhaps we had better leave this matter over until to-morrow.
Is it clear that Dáil Éireann has the power, under the Constitution, retrospectively to extend the time if the Seanad overruns the time laid down in the Constitution, and before applying under the Constitution for an extension of time? Are we clear in our minds that we can retrospectively do it?
That is the point that I want to get examined.
I will not express an opinion on that.
There is no reasonable doubt, however, that the Dáil, if it so wishes, can now enact the Bill with the amendments inserted by the Seanad.
Time notwithstanding?
Yes. Under the Constitution the Dáil would be entitled by resolution to make the Bill law without these amendments. It is, therefore, free to accept the amendments if it so wishes.
I would be inclined to agree with that view because Parliament can do anything. The only reason why I suggest the course that I have mentioned is to prevent the possibility of any litigious individual hereafter putting anyone to the expense of having the point proposed properly tested.
Perhaps it would be better to let the matter stand over until to-morrow.
Agreed.