Vol. 153 No. 6
I move amendment No. 1:—
In sub-section (1), in the definition of consular officer, line 24, to delete "whether individually or by reference to a class."
I put down this amendment in order to find out what the Minister has in mind in regard to the nomination of persons, not individually, but by reference to a class as consular officers.
That is a practice which has been found administratively convenient. I am prepared to give the Deputy all the reasons. If the Deputy's amendment were adopted, it would mean that it would be necessary to nominate individuals by name to act in this particular capacity. Many of these individuals would not be in this country, but elsewhere, and the problem would arise where the particular individual, having been appointed, might be transferred elsewhere, before we knew anything about it. He might be on holidays at the particular time his services would be needed, or he might be critically ill. If he were the only nominee to discharge these consular functions, then the ship concerned would be held up. Those holding the ship would be put to very considerable expense if the only nominee in a particular place was either ill, on holidays, or transferred suddenly without our getting an opportunity of making a fresh appointment.
The definition contained in this section is a definition—which is, as it were, reconfirmed here—in an adaptation Order made in 1945 which has continued since then. It is provided for in this Bill as being administratively the most convenient way in which the matter can be dealt with.
I think the Minister should have another look at the powers given to these consular officers.
Is the amendment being withdrawn?
I suggest to the Minister, if I understood him correctly, that some of the powers proposed to be given to these consular officers might be reconsidered.
I will look at it between now and the Seanad stage. The Deputy is talking of the powers as distinct from——
The powers of consular officers under the Bill.
I move amendment No. 2:—
In line 40, to delete "by the Minister".
This amendment is an alternative to the amendment submitted by Deputy Lemass, which is amendment No. 3 to Section 19. If the Deputy so wishes and the Ceann Comhairle will permit it, we could discuss both amendments together. An Order made by the Government under Section 19 declaring a particular State to be a reciprocating State would not be subject to annulment by the Oireachtas, as the Bill is drafted. Deputy Lemass has proposed an amendment to Section 19 to provide that such an Order shall not come into force until it has been approved by resolution of each House of the Oireachtas. I do not propose to accept that amendment, because of the delay which would necessarily arise in giving effect to such an Order; but in order to travel some distance to meet the Deputy, I suggest instead to that the amendment should provide that such Government Orders shall be-subject to the provisions of this section by deleting the words "by the Minister" in the first line. I hope that amendment will meet reasonably the object the Deputy has in view.
This is a matter which has been not infrequently discussed in the House and it seems to me that something like a standard pattern has emerged. Where a Bill gives a Minister power to do by regulations a number of detailed things required to make the Bill effective, things which would be too small to be covered by specific sections in the Bill, then, there is a case for the procedure which is contemplated in parts of this Bill, of the Minister making an Order which the Houses of the Oireachtas have the power to annul, without prejudice to anything done under the Order. But where the Minister or the Government is given power to extend considerably the scope of the legislation, to alter it in a fundamental way, then, it seems to me that the positive consent of the Oireachtas should be required in advance. The main purpose of this Bill is to provide that an Irish registered ship will be owned only by an Irish national or a company registered here; but a section of the Bill gives the Government power to change that situation completely by giving the right to own an Irish-registered ship to a national of another country, provided they are satisfied that reciprocity has been secured. Such a very substantial extension of the scope of the Bill should, I think, be positively approved of by the Oireachtas. Otherwise, this Bill is far less definite than the House was led to believe.
I do not see that the question of delay is a problem. Wherever agreements relating to trade or some other matters, agreements relating to income-tax, double income-tax and so forth, are made with Governments of other countries, they have to be brought here for approval.
An agreement which gives the right to nationals of another country to own ships carrying the Irish flag and entitled to the privileges of being on the Irish register is a substantial and important agreement, and it should not, I think, come into operation until the House has been informed of the intention of the Government to make that agreement and asked to approve of it. The normal provision which gives the Oireachtas power to annul ministerial Orders is all right where only administrative Orders are concerned. Where the legislation gives the Government power to extend in a very substantial way the scope of the legislation, I think there should be positive approval in advance by the Oireachtas, and that has been the normal practice, I submit, in relation to matters of that kind.
If we can take what is happening to-day, so far as reciprocity in that line is concerned, as the normal procedure, the Deputy's amendment would, in fact, fracture that normal procedure as we know it to-day and create a hiatus which, I think, it is desirable to avoid.
How is that?
That is what I wish to explain to the Deputy. Under the existing law, British citizens and companies registered in Britain, and in the British Commonwealth, are entitled to register a ship in Ireland, while Irish citizens and Irish bodies corporate are entitled to register and own ships in England. The power of making reciprocal State orders, which is conferred by Section 19, has been taken principally to ensure that these rights be continued; in other words, that that mutuality be continued without interruption. It is the Government's intention to make an Order in favour of Britain, immediately on the passing of this Act, so as to avoid any interruption of the rights of those people to register any ship here. That can be done in the manner suggested in Section 19, subject to the right of Parliament to annul the Order so made. If it is done in that form, there is no interruption of the present mutual arrangement whereby there is reciprocation between both States; whereas if the Minister concerned is required to get positive approval for an Order of this kind, then in so far as there is any delay between the passing of this Act and the securing of authority from Parliament to endorse a reciprocating Order, to that extent this arrangement— which has continued and which it is desired to preserve—will be terminated for the duration of time in which it takes the Minister concerned to get authority from the House for the reciprocating Order. I do not think Deputy Lemass would quarrel with the procedure which I have contemplated adopting.
If there are fears as regards any time in the future—after we have arranged the customary reciprocations —there might be a case for saying: "Well, all right, you can do your existing reciprocations to continue the position for some time, but after a certain period, if you start anything new, you must come to the House and ask for a positive resolution before a reciprocating Order is made effective." I would point out to the Deputy that acceptance of his form of amendment at this stage would terminate an arrangement which has been in existence and which would continue in existence were it not for this Bill, and an arrangement that it is desired to preserve as being mutually advantageous.
I will change the basis of my criticism altogether. The section says that the Government may by Order permit nationals of other countries to have ships on the Irish register. The implication is that the Government is given a power to do something which it may or may not exercise. If the Government has already made up its mind that British nationals and British companies are to be entitled to have ships on the Irish register—and I agree that that should be the position so long as Irish nationals and Irish companies have the corresponding right in Britain—this Bill should so provide, and the question of the further extension of that privilege to the nationals of other countries, or the termination of that privilege, so far as Britain is concerned, should be a matter for governmental Order.
It seems to me that it is a wrong arrangement to take power to do something which the Government have already decided should be done, and for which they should have made the requisite provision in the Bill. Nor do I see why there should be any delay, because the Minister can produce the draft of his Order forthwith and submit it to the Dáil, and, so far as I am concerned, I will support the approval of that Order, because nobody wants to terminate the arrangement by which British companies, like the B. and I., keep their ships on the Irish register and sail them under the Irish flag.
The device of merely taking power to do something when a decision to do it has already been made is, in a sense, misleading, and I think that the Bill should have been framed, if that was the intention, to provide in its terms for the granting of this facility to British nationals and companies, and only for its termination by Government Order, if and when circumstances required its termination—either internal circumstances or alteration of practice in Britain. I will go further and repeat the view which I have asserted over many years—that the power of making Orders which only the Dáil can annul should be confined to administrative details which would be too cumbersome to set forth in the legislation itself. Where the Government or a Minister takes power substantially to extend the scope of a measure, to do something which is, in effect, legislation, the prior approval of the Oireachtas should be sought.
I do not know if the Deputy has looked at the obverse side of what he is now proposing. The proposal is that we should make a reciprocating Order in respect of the ships of a State with which we have a reciprocal arrangement, and therefore so long as both sides are willing to agree to this mutual recognition of the status of each other, the Order can have the currency of the goodwill that exists. But if you put down here in this Bill a provision whereby you definitely write into legislation that you are recognising this in respect of certain countries at this time, and if at a later stage one of those countries, for one reason or another, decided that it would not continue to recognise our status, fresh legislation would be needed.
You could have power to withdraw it.
Then, of course, if you write into this a permanent recognition such as the Deputy has suggested and you run into a situation in which the other country is not prepared to continue its recognition of our status, you would thus need a Bill, a piece of legislation, to reverse what you were doing in so definite a way.
I have no objection to the Government taking power to withdraw any facility by Order, if the situation requires it.
Does not this achieve the same effect?
Am I not right in saying that the British legislation specifically gives this right to Irish nationals and ships—that it is not a matter of ministerial Order, but is in the legislation?
I think that is only so because the Act goes back to 1894.
No. I was talking about the Ireland Act, which was passed in 1948 or 1949, which by itself would have withdrawn this right from Irish citizens, but specifically applies it.
I cannot say offhand what the position is, but in any case, so far as this provision is concerned, what I am doing is giving effect to an informal agreement which was reached with the British authorities in 1952 on this subject.
I am not objecting to the doing of it, but to the method of doing it.
It is not proposed to move this section. The power of temporary registration was first taken during the emergency, so that a ship on charter might be registered temporarily in Ireland, and thus become entitled to fly the Irish flag. That power was retained by Section 4 of the Merchant Shipping Act of 1947, and it had originally been intended that the section would be re-enacted in this Bill. But since the Bill was introduced, the International Law Commission of the United Nations has published a set of provisional articles on the régime of the high seas and it is thought that this particular section might be in conflict with one of the articles issued by this International Law Commission. In the view of that possibility, therefore, it has been decided, in consultation with the Department of External Affairs, not to proceed with this section since it would possibly be in conflict with a new code of laws which would apply in cases of this kind.
Section 22 deleted.
