: It is proposed to take business in the following order: Nos. 7 (Resumed), 5 and 8.
Order of Business .
: I wish to raise a point of order which I believe affects in a very significant way the rights of the Opposition and the freedom of debate in this House. I am asking you for a formal ruling on the interpretation of Standing Order 88, paragraph (3). This Standing Order is a relatively recent amendment to the earlier Standing Orders arising from a report of the Informal Committee on Reform of Dáil Procedure, chaired by the present Minister for Industry, Commerce and Energy, Prl. 2904, published in January 1973. Paragraph 23 of this report says that the leave of the House is necessary for the introduction of every Bill and went on to say that the main effect of this procedure was that many efforts by private Members to initiate proposals for legislation failed on First Stage so that the proposals were neither printed nor circulated to Members and not considered by the House on their merits. They said that later in their report they were going to propose that a limited number of Private Members' Bills could be initiated without leave of the House.
This proposal was put forward in paragraph 49 which said:
As the leave of the House is required to introduce a Bill the Government can, if it so decides, normally defeat a private Members' Bill on First Stage. In that event the Bill is not printed and the Member concerned is deprived of an opportunity of having his Bill discussed by the House on its merits. Many private Members' Bills are defeated on First Stage. While we do not accept that all private Members' Bills should be printed irrespective of the prospects of time being found to debate them on Second Stage—
I emphasise the words that follow:
we believe it to be unfair that in all cases the private Member must in effect be dependent on the Government to secure a second reading debate in private Members' time. In paragraph 22 we have recommended that a Bill presented by a Member of the Government may be printed and circulated before it comes before the House on First Stage when all that will be required is the making of an order for its second reading. We recommend that a private Member should also be allowed to present a Bill in this fashion provided he is nominated for that purpose by the group (within the meaning of Standing Order 86 (1) to which he belongs.
I emphasise the next words:
It will then be up to the group to avail of its right in rotation to nominate the Member to move the second reading if it desires to secure the appropriate priority in Private Members' time.
It is perfectly clear from this that the committee decided to eliminate the dependence on Government agreement for the Second Reading of Private Members' Bills in Private Members' time when these have the support of a group. They intended to leave the timing of the introduction of such Bills entirely to the group in question "availing of its rights in rotation to secure the appropriate priority in Private Members' time.".
The committee proposed to do this by introducing a new standing order. This standing order was introduced by the Committee on Procedure and Privileges, which clearly intended to give effect to this recommendation, the new standing order being Standing Order 88 (3) which reads:
A member of the Government, Parliamentary Secretary or a private member nominated for the purpose under Standing Order 85 (2) may present a Bill without previously obtaining leave of the House and any Bill so presented shall be printed and an Order for its second reading shall be made.
I raise with you the question of the significance and meaning of this. It seems to me that the wording of this is peremptory. I ask that you, in considering the interpretation of this, bear in mind the intention of the informal committee and the obvious desire of the Committee on Procedure and Privileges to give effect to it. If in fact the significance attached to the words "that an Order for its Second Reading shall be made" were to be that this order was to be made by the House and that the House could reject such an order, then this would be contrary to reason and it would vitiate the whole purpose of the recommendation of the committee and so it does not seem to me to be a reading or an interpretation of 88 (3) that would stand up to scrutiny.
As far as I am aware, the Committee on Procedure and Privileges were never given to understand, and does not understand it to intend, that anyone by using this wording could in effect subvert totally the clearly stated intention of the informal committee whose recommendation they thought they were implementing. I should, therefore, like to submit to you, a Cheann Comhairle, that, first, the order contemplated in Standing Order 88 (3) is not an order of the House but an order to be made by you and, secondly, and alternatively, in the event of your ruling in a negative manner on that point, the House is required by its own Standing Order to make the order in question.
On the first point, namely, that the order in question here is an order to be made by you, rather than by the House, the only relevant provision appears to me to be Standing Order 87 (1), which provides for decisions of the Dáil to take the form of resolution, order or initiation of a Bill and paragraph (3) provides that the matters that may be dealt with shall include "the printing of Bills". It says "include". It does not say "comprise". In fact, nowhere in Standing Orders is it required that all matters that may be dealt with by order are matters for decision by the Dáil and neither does the Constitution so require. Moreover, Standing Order 88 (3) is still governed by Standing Order 88 (1), which refers to procedure in relation to the First Stage of Bills as requiring the title of every Bill and a short description of its purpose prepared by the proposer—and I quote—"and accepted by the Ceann Comhairle, shall appear on the Order Paper". The criteria for its acceptance by the Ceann Comhairle are specifically laid down but, by implication, would appear to be that he is satisfied that the provisions of Standing Order 85, relating to the group responsible for proposing the Bill, have been complied with together with other provisions relating to revenue, et cetera. Once the Ceann Comhairle is satisfied that these have been satisfied, it would appear the Ceann Comhairle has no function but to accept the Bill. Having accepted it, the words of 88 (3) “shall be printed” are incapable of any other meaning than that the printing shall immediately take place. Moreover, I submit that, consequent on printing, the order must be made. There is nothing either in Standing Orders or in the Constitution requiring that such an order come before the Dáil. The order automatically follows 88 (3) provided the provisions of 88 (1) have been complied with just as the official journals are prepared by virtue of the operation of Standing Orders themselves.
I would also point out that Standing Order 85 (4) provides—I am omitting irrelevant words relating to motions— that at least ten days prior to the date on which a Stage of a Bill is taken in the Dáil the Members nominated by a group shall indicate to the Ceann Comhairle the Stage of the Bill to be taken and the Ceann Comhairle will give the Bill appropriate precedence in the Private Members' Business on the Order Paper. This Standing Order makes specific provision for the Ceann Comhairle to order the taking of the Bill in a particular period of Private Members' time. It does not give the Dáil any function in the matter.
I therefore submit that the correct course of action in relation to Private Members' Bills submitted under Standing Order 88 (3) is for the Ceann Comhairle, the Bill having been printed, to make an order for its Second Reading in Private Members' time in accordance with the priority indicated by the relevant Member of the particular group. The only alternative interpretation of this new Standing Order, which was intended to liberalise the procedures for Private Members' Bills, would be that the House is required automatically to make such an order. If neither of these interpretations were accepted, then the effect of the new Standing Order 88 (3) would be the exact opposite of the intention of those who introduced it, namely, it would have the effect of preventing any debate at all on Bills introduced by this new and allegedly liberalising procedure, even the five minutes' speech permitted on a contested First Reading under the older procedure, which has survived in Standing Order 88 (2).
I therefore ask the Chair to rule in my favour on one or both of these points. Failure to do so would entirely vitiate the purpose of this new Standing Order and would have the effect of permitting the Government preventing any debate whatever taking place on a Private Members' Bill introduced by the new procedure, a procedure specifically designed to overcome what the informal committee described as the unfair character of the older arrangement under which a Private Member was dependent on the Government to secure a Second Reading in Private Members' time.
: I permitted the Deputy to make an unduly long statement. I am afraid I cannot agree to either of the two alternatives he submitted. The procedure, so far as the Chair is concerned, is clearcut and has a precedent; but even without that precedent, I still find Standing Orders quite clear and unambiguous. Without going into any great length about the history of this, the reform committee sought to do something in order to remove an amomaly in the previous Standing Orders—that was that frequently the Second Reading was refused without anybody ever having seen the Bill. This was manifestly an anomaly and the new Standing Order now permits the Bill to be printed.
The Second Stage must be proceeded with by order—"An Order shall be made". The Ceann Comhairle does not make orders and the phrase "An Order shall be made" has appeared in Standing Orders from the first day on which Standing Orders came into being. "An Order shall be made for the Third Stage"; "an Order shall be made for the Fourth Stage"; "an Order shall be made for the Fifth Stage"—these words appear frequently in Standing Orders and they mean an order of the House. In the past such orders have frequently been contested and opposed and carried only by a vote of the House. "An Order shall be made"—it does not say, as Deputy FitzGerald argued, that an order must be made.
Under Standing Order 87 (3) it is clearly set out that the order is an order of the House. It is not the Ceann Comhairle who makes an order. It is the Dáil. I am, therefore, ruling accordingly. The procedure to be adopted here—the Bill has been initiated by the Fine Gael Party in the name of Deputy Deasy—will be for Deputy Deasy to move that the Second Stage be taken in Private Members' time. There has been a precedent for this within the last few years. There was a precedent set in 1976. My ruling is in accordance with past procedure.
: May I intervene for a moment? The purpose of the proposed Private Members' Bill is to take account of a High Court judgment delivered recently in respect of the forfeiture of certain equipment on board a fishing vessel, a vessel that contravened our limited waters, and I would like to say that in that connection the Minister for Fisheries has under preparation a Bill to do exactly what is proposed but more comprehensively.
: Is this in order? The Chair asked me not to refer to such matters.
: Sit down and have manners.
: If the Deputy will allow me, I was about to be generous but, if the Deputy does not want to hear me, he can have it that way.
: I took it the Taoiseach was going to refer to a precedent.
: No and, if I am not in order, I will not proceed. The Chair's ruling is——
: I did not rule the Taoiseach out of order.
: Deputy FitzGerald did.
: The only reason I did not raise it was because I was asked not to raise the subject matter. I did not wish to do so but, if the Chair feels it can be discussed, I am more than willing to have it discussed. I merely wanted to keep within the rules of order.
: The subject matter may not be discussed.
: If the Deputy wants to go into legalistics, well and good. It is a well-known maxim of law—I am sure Deputy Kelly will agree with it—that legislation or orders made under legislation are interpreted by the courts exactly as they are expressed and the courts do not go behind that expression to find out what the intention of the legislation was.
If Deputy FitzGerald wants to fix me on the strict interpretation of rules, that is the interpretation of what legislation is when it comes before the courts. I am not agreeing by any means with what Deputy FitzGerald says the intention of the committee was, but no matter what the intention of the Legislature was, the interpretation is exactly as expressed or as it should be expressed. I believe, Sir, you were right in your interpretation.
If what Deputy FitzGerald says is correct, the House is bound to discuss and debate the Second Reading of a Bill no matter what its content, no matter how obnoxious, no matter how irrelevant to or inconsistent with the tenets to which this House should have regard. If Deputy FitzGerald wants to follow the ordinary rules and take the Bill his colleague has before the House, we will have no objection notwithstanding the fact that we will have a much more comprehensive Bill which is necessary and is in the course of preparation to be taken in the ordinary course of preference under Standing Order 85 (4).
: Would the Ceann Comhairle reconsider his ruling since he indicated there was no precedent for what is being proposed? As Ceann Comhairle you must be aware that there was exactly the same precedent in relation to a Fisheries Bill introduced by the then Opposition. An order was requested by the then Opposition to have it transferred into Private Members' Time. We are not asking to have this Bill taken during Government time. The then Ceann Comhairle, in consultation with his staff, ruled clearly that the then Government would have to make time available for the Bill to be taken in Private Members' Time. We are not asking the Ceann Comhairle to invade the Government's time. We are asking that a Bill be transferred into Private Members' Time for debate. I served as a member of the Committee on Procedure and Privileges which specifically amended that section of Standing Orders. This nullifies and destroys the very purpose for which we amended Standing Orders to enable the Second Stage of Private Members' Bills to be debated in Private Members' Time. I would ask the Taoiseach to make it possible to have a debate——
: I just said I would.
: Up to five minutes ago the Taoiseach's position was quite different.
: I was being generous until Deputy FitzGerald——
: It is not a question of generosity. It is a question of Members' rights.
: I want to make my position clear in case Deputy Desmond did not understand me. I am aware that in 1976 a similar proposal was made. It was by order of the House. I am making it clear that the Ceann Comhairle does not make such an order. The House makes the order. On that occasion the order was not opposed. I am not ruling that it may not be opposed. There is nothing on the record to show the Ceann Comhairle took a decision that it could not be opposed.
(Interruptions.)
: Order. Do not bring ridicule into this. My decision is that an order must be made by the House.
: I am grateful to the Taoiseach for agreeing that the Bill may be taken. I am sorry if in interrupting him I offended him. I was very conscious of the fact, Sir, that in prior discussion you required me not to refer to the subject matter and I thought that should operate both ways.
: I was not aware of the Deputy's conversation with the Ceann Comhairle.
: I appreciate that, but apparently it is part of the rules of order that one should not get involved in the merits of it. I appreciate the Taoiseach's explanation of his willingness to have the Bill taken if it is necessary to do so. Could I ask the Ceann Comhairle whether what Deputy Desmond said is correct: that the previous precedent is that the Ceann Comhairle directed that the Bill must be taken? I was not aware of that. If it is correct, it is important that it should be clarified for the House.
: It is very important. That is the point I am trying to explain. On that occasion Deputy Lalor proposed that the Bill should be put down to be taken in Private Members' Time. That was agreed.
: The House had to agree.
: Order, please. If the Ceann Comhairle had any prior discussions, privately or otherwise, there is nothing on the record to show he ruled it must be taken. I read the record no later than today.
: I am prepared to accept——
: The matter has been before the House long enough now.
: ——the ten days preferential rule.
: I move: "That Item No. 1 on today's Order Paper be taken in Private Members Time."
: I will deal with that accordingly. Is that agreed?
: In accordance with Standing Order No. 85 (4) we are agreeable.
: I should like to give notice of my intention to have raised with the Committee On Procedure and Privileges the form of Standing Order 89 (3) since it appears it does not take the form originally intended by the committee.
: That is the appropriate place to raise it.
: I should like to give notice of my intention to raise on the Adjournment the subject matter of Question No. 18 on to-day's Order Paper in view of the unsatisfactory nature of the Minister's reply.
: I will communicate with the Deputy during the day.
: There may be some confusion here. What in fact will be taken in Private Members' Time this evening? We were not clear on whether this would be taken and we had put down another motion. Before the Order of Business is completed we should clarify what will be taken this evening. We are open to your direction.
: Perhaps the Taoiseach could help the House.
: We are prepared to accept Deputy Deasy's motion under Standing Order 85 (4) which provides that Deputy Deasy, now having made the motion, is entitled after a lapse of ten days to have preference in taking the Private Members' Bill. Therefore that Private Members Bill will be taken on this day fortnight, the earliest date within which the ten days can operate. I understand in the meantime that, in the event of this being decided, or the order being made by the House, Motion No. 38 will be taken by agreement.
: Thank you.