Mr. O'Higgins, apparently there is no one here to move this amendment.
THE SEANAD IN COMMITTEE. - GARDA SIOCHANA BILL, 1924—REPORT STAGE.
I wonder, sir, if I could ask some Senator to move it, without prejudice to his own view.
I move it.
Of course, it will be understood that a Senator moving this at the request of the Government is not necessarily bound to vote for it. It is in order to give an opportunity of having the matter discussed. It will require a seconder.
I beg to second.
I think it will be more convenient to take this in two portions. I think the first motion ought to be to delete sub-section (2), because, if that was not carried, the other would necessarily fall to the ground. If it is carried, I will put the motion to insert the new sub-sections.
This Bill was considered by a Special Committee of the Seanad some days ago, and I attended the Special Committee. Exception was taken to portion of sub-section (2) of Section 7 and sub-section (2) of Section 8 of the Bill, as it then stood. Sub-section (2) of Section 7 provides that Orders made under the Section dealing with rates of pay and allowances should be laid before each House of the Oireachtas, and if a resolution is passed by Dáil Eireann within the next subsequent twenty-one days on which Dáil Eireann has sat annulling such Order, such Order shall be annulled accordingly, but without prejudice to the validity of anything done thereunder, and any recommendation in respect of such Order which shall be made by Seanad Eireann within such twenty-one days shall be duly considered by Dáil Eireann. Senators will be aware of the provisions of the Constitution——
That was the clause in the Bill as it stood when it was sent to the Committee, but when the Committee went into it they inserted this new sub-section (2). Is that not right?
That is right, sir; I am simply reciting what occurred at the special committee. Senators will be aware of the provisions of the Constitution bearing on Money Bills, and I would like to say at once that it is not claimed that there is identity. It is claimed that there is a very full and a very real analogy between Money Bills and regulations of this kind which may be made by order, dealing with the pay and allowances of members of the Police Force. It would scarcely be questioned, I think, that if the matter of these regulations were embodied in a Bill that that Bill would be duly certified as a Money Bill.
That is, if it contained nothing else.
Yes, sir. My contention is that if the matter which is normally embodied in these regulations, instead of being embodied in a regulation were embodied in a Bill, there is very little doubt that that Bill would be certified as a Money Bill, and that the provisions of the Constitution would apply.
We must be very accurate about our phraseology on this question, Mr. O'Higgins. You are quite right in saying that — absolutely right—unless there were other clauses in the Bill. Many of these Bills that come up before us contain money clauses, but they are not certified and cannot be certified as Money Bills, because they contain matters that deal with other things besides finance. It is quite true that if these regulations regarding the scale of allowances were embodied in a separate Bill and there was nothing else in it, that separate Bill would undoubtedly be certified as a Money Bill.
I am putting a case, and the case I am putting is simply this, that if the money clauses which these regulations normally contain, and will contain in fact, were embodied in a Bill, that that Bill would be certified as a Money Bill. I agree with An Cathaoirleach that if extraneous matter were embodied that that would make a difference. But the regulations bear solely on the question of pay and allowance for the police.
And conditions of service.
The section reads: "The Minister may with the sanction of the Minister for Finance, from time to time, by order, regulate and appoint the rates of pay and allowances (including conditions applicable thereto) to be paid to the several ranks and to the several grades of each rank of the officers and men of the Gárda Síochána." Now, what I am contending is that if instead of dealing with that matter by regulation, it were dealt with by Bill, such a Bill would unquestionably be certified as a Money Bill. Now, the provisions with regard to a Money Bill are set out in the Constitution. I want to be quite clear on this point. In this Assembly there are many eminent financiers, and taking the Assembly as a whole, there is no question whatever raised of its competence and its responsible outlook in dealing with matters of money. The principle that it was intended to safeguard in the Constitution was simply this, that the moneys levied from the people in taxation shall be dealt with by those who are directly responsible to the people and by no others. This Assembly is not merely responsible to the people. In the course of time that, of course, will change, and it is not for us, when that state of affairs comes about, to say what changes may or may not be thought necessary.
We are dealing with the situation as it exists; the members of this body have not any immediate direct political responsibility to the people who pay the taxes. Underlying the provisions of the Constitution with regard to Money Bills, you have an insistence on the principle that dealings with the people's money shall be only by those who have direct, day to day political responsibility to the people. Now, I would like to stress one point. The word "irresponsible" has come to have a particular meaning, an invidious meaning, and I am not suggesting that the Seanad in money matters would be irresponsible. It is quite probable that on the whole it would be more scrupulously painstaking than the other Assembly. I am using the word in its political sense, and perhaps it would be better and wiser to use the word "non-responsible" rather than "irresponsible." Now, these regulations deal with the question of pay and allowance to the police. I am contending to the Seanad that if they were embodied in a Bill, the Bill would be duly certified as a Money Bill, and consequently in the sections, as they came before the Seanad, we follow the analogy of the Money Bill, and stated that while the Dáil might, by resolution, annul the regulations without prejudice to the validity of anything done thereunder, the powers of the Seanad should be confined to making such recommendations as they might think fit to make, and that these recommendations would be considered in due course by Dáil Eireann.
There is, further, this point, that these regulations are made by the Minister in the ordinary course of his administrative responsibility, and his responsibility lies to the people through the Dáil. If the regulations which he makes in an administrative way, and in the discharge of his administrative functions, are to be annulled, they should be annulled by the Dáil, by those to whom he has direct responsibility. Now, Senators know, and I am not stressing it, in any invidious way, that Ministers have not that kind of responsibility to the Seanad, that an adverse vote here, for instance, would not affect a particular Minister or the Executive Council as a whole. These regulations, if it is thought fit to empower a Minister to make regulations of this kind in the ordinary way of administration, should be annulled by the body to which the Minister is responsible. The Seanad is given the power and right of duly considering the regulations and making such recommendations as it may think fit in its wisdom to make. Now, in the Special Committee there was one point made which certainly struck me as an eminently sound point, and it was that in the wording of the Bill as it then stood this was a possible situation: that the Seanad might not sit at all within 21 days after the laying before the Dáil of the regulations, and might not have an adequate and ample opportunity to make its recommendations. Now, I think that such a situation would scarcely arise, because 21 days are 21 sitting days, on which the Dáil will actually sit, which in fact and in practice would mean that there would be something over a month in which it would be open to the Seanad to make its recommendations. I have had drafted two amendments which appear on the Order Paper as Government amendments. The first, which is to Section 7, reads: "To delete sub-section (2) and insert in lieu thereof the following two new sub-sections":—
(2) Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution is passed by Dáil Eireann within the next subsequent 21 days on which Dáil Eireann has sat annulling such order, such order shall be annulled accordingly, but without prejudice to the validity of anything previously done under such order.
Following that you have sub-section (3)—
(3) Any recommendation made by Seanad Eireann in respect of any such order within the next 21 days on which Seanad Eireann has sat after the Order is laid before it shall be duly considered by Dáil Eireann within the next subsequent fifteen days on which Dáil Eireann has sat, and if a resolution shall be passed by Dáil Eireann within such fifteen days annulling the order, the order shall be annulled accordingly but without prejudice to the validity of anything previously done under the Order.
That safeguards the situation from the point of view of the Seanad. It ensures that any recommendations the Seanad may make within 21 days after the regulations are laid before it, must be considered by the Dáil, even if the Dáil has previously considered the regulations. That is the point; that there may be consideration of these regulations in the Dáil, and subsequently recommendations may come along from the Seanad, and Sub-section (3) which it is proposed to insert, makes it incumbent on the Dáil to give due consideration to any such recommendations. Now, I have also met that point with regard to Section 8, Sub-section (2) which was altered by the Special Committee. I thought it was proper that the point should be met even though I considered myself that the particular situation outlined was highly unlikely to arise. It comes down to this point, that the analogy of the Money Bill has been followed with regard to these regulations, that the contention of the Government is that if the subject matter of these regulations were in fact embodied in a Bill that the Bill would be certified as a Money Bill, and further, that regulations of this kind made by the Minister in the discharge of his administrative functions, should be annulled only by the House to which that Minister is politically responsible, and by the support of which he holds office. I put that case to the Seanad for its consideration, and while I have met the point before, I should like to stress this again, that there is here no question of attempting to belittle one Assembly at the expense of another. There is no question of raising any point about the competence, not speaking in a constitutional sense, of this Assembly to deal with money matters, to deal with moneys levied in taxation from the people, but simply for what seemed at the time good and sufficient reasons certain provisions were inserted in the Constitution, and it is felt that there is here with regard to these regulations a very real and substantial analogy.
I am not going to enter into a controversy bearing on this, nor am I going to suggest to the House how they should vote. I think it is right, however, that I should explain first of all the position that has arisen, and secondly, the position under which that situation seems to stand under the Constitution. This Bill came up from the Dáil, not as a Money Bill; it was not certified as a Money Bill; and, of course, looking at its contents, it is quite plain it could never have been certified as a Money Bill, and never was a Money Bill. It was referred by a vote of the House to a Select Committee, and that Select Committee inserted two sub-sections, one to Section 7 and the other to Section 8, the two sub-sections the Government now wish to have deleted. These two sub-sections were evidently intended to restore the terms of the Bill to a position in which it would be in conformity with the Constitution, as the Constitution has been understood in this matter by the Seanad itself, because I will remind the Seanad later that this is not the first occasion on which this question has been raised.
Now, it is perfectly plain from the Constitution that this House is under no restriction of any kind in regard to money clauses unless they are contained in a certified Money Bill, and nothing can be clearer than this, because here are the words of the Constitution: "Every Bill initiated in and passed by Dáil Eireann shall be sent to Seanad Eireann, and may, unless it be a Money Bill, be amended in the Seanad." In other words, the Seanad is given by the Constitution unlimited power to amend any part of any Bill save and except a certified Money Bill, with the result that if money clauses for the convenience of the Government are inserted by the Government in a Bill that is not a Money Bill within the wording of the Constitution, this House at once gets precisely the same right of amendment over these clauses as it has over every other part of the Bill. I want the House to understand that and to realise what the position is when they come to vote on the matter. There is one other provision in the Constitution I should like to point out to you; it is Article 36, which provides "that no money is to be appropriated to any purpose except by law." If you go to Section 12 of the Constitution — I think it is Section 12, though I am open to correction — you will find it clearly set down that every law has to be an Act of the Dáil and the Seanad, so that there could not be any appropriation of money except by the joint action of both Houses. Otherwise it would not be an appropriation by law. If it is a certified Money Bill, then the action of the Seanad in making appropriation is confined to recommendations, but if there are money clauses in a Bill other than a Money Bill they have complete power of amendment just the same as if it were any ordinary Bill. I said this is not the first time this question was raised, and I regret that the Government should have more or less gone out of their way to raise it on an unimportant and non-controversial measure like this Gárda Síochána Bill, because I do not think there would be any opposition whatever in any quarter of this House to this Bill if these two provisions in Sections 7 and 8 had not been inserted. If you look at the clauses as originally inserted by the Government and look at them in the shape they now seek to amend them, you will see that what they are doing now is this— they are endeavouring to restrict the power of the Seanad to amend these clauses in the Bill. In other words, while they recognise the power and the right of the Dáil to alter and amend these regulations and these schedules, they take away from the Seanad the power it has under the Constitution of making amendments, and they simply seek to bind it down to making recommendations. This question was raised before on the Judiciary Bill when this House, the Seanad, passed a resolution transferring the salaries of the District Justices to the Central Fund, and the Attorney-General of the day, here in this House, raised the question as to the competence of the House to do that. The matter was referred to a sub-committee, and you may recollect they sent in a report which substantially embodied what I have told you was the Constitutional provision. That report was unanimously adopted by the Seanad, and they adhered to the clauses that they inserted transferring the salaries of the District Justices to the Central Fund. We were threatened with an attack on this in the Dáil, but there was no such attack, the Dáil, apparently, recognising the Constitutional provision. That amendment was accepted and passed by the Dáil. I mention these facts so that the House may be in a position to realise the importance of the questions raised when a controversy arises on an innocent-looking proposition like this.
As a matter of explanation, I would like to say that it is not part of my contention that the Seanad has not the right to alter the Bill under consideration, and it is no part of my contention that that Bill could, by any stretch of the imagination, be termed a Money Bill. My contention is that those particular regulations are analogous to money legislation. They deal solely with the pay and allowances of the members of the Police Force, and if the matter of the regulations were, instead of that procedure being adopted, embodied in a Bill, I, for my part, have no doubt whatever that the Bill would be certified by the Ceann Comhairle of the Dáil as a Money Bill. It was felt with regard to those regulations that the procedure with regard to a Money Bill should be followed. Otherwise you would have this situation, that in a matter of money and taxation you would have power of annulment, and power of amendment, in a Chamber which is not, directly or immediately, responsible to the people who pay the taxes.
Was not that power admitted and recognised in the Judiciary Bill?
No, sir; I would not regard the case you have quoted as similar to the case under consideration.
There could not be a stronger case than the one I have quoted, because in that case a Bill has passed through the Dáil containing the provision that the salaries of the District Justices were to be paid out of the Estimates. This House passed an amendment disagreeing with that, and transferring their salaries to the Central Fund, and that amendment was treated as a legitimate and proper amendment by the other House, and accepted there.
I do not know that anybody will find fault with the contention of the Minister that if those clauses had been part and parcel of a Money Bill that then the Seanad would have practically no interest in it.
Except to make recommendations.
Except to make recommendations. Through the action of the Executive or the person who drafted the Bill they have introduced into a perfectly innocuous and simple Bill, money clauses.
No. It is not a question of the clause being or not being a Money Clause. It is a question that the regulations when made under the Bill will be, and ought to be, analogous to money legislation. The two sections under consideration give power to a Minister to make those regulations. The regulations will, in due course, be laid before both Houses of the Oireachtas, and our contention is that the procedure then with regard to those regulations should be on a line with the procedure in regard to a Money Bill.
I do not think anyone objects to that, but the outcome will be that when those who frame a Bill are anxious to introduce a Money Clause into it, the same contention will come up here again. If that is so, surely it would be easier for the Government when framing their Bill to delete any regulations in connection with money, and put that into a Bill which the Speaker will certify as a Money Bill. The same thing will come on again, and we will have the same discussion and loss of time over what really, except for principle, is a trifling matter.
I rise to oppose this amendment, and do so entirely on Constitutional grounds. In the month of March last a Committee of this House unanimously reported to the House, and the House unanimously adopted their report, that the power of amendment by the Seanad in the case of a Bill was absolute, except a Bill was certified to be a Money Bill. Beyond all doubt that is a true reading of the Constitution, which has been accepted by this House, and, I think, has been entirely accepted by the Dáil. My objection to the present amendment is this: The effect of it is to introduce into what I may call delegated legislation, that is legislation through an order of the Minister, a limit to the power of the Seanad that would not exist if it were a Bill that had to pass from this House. With great respect I do not agree with the Minister that the regulations, which under Section 7 may contain conditions of service, as well as mere rates of pay, would possibly be considered or certified as a Money Bill. An order merely prescribing what are rates of pay or allowances without any appropriation of money to those allowances or rates of pay could be certified by the Speaker of the other House as a Money Bill. What I fear is this, that the effect would be a limitation to the power of this House to amend what is really legislation, because the power of legislation has been delegated to a Minister. I think the same objection may be urged with success against limiting the power of the Seanad in the matter of an order made by the Minister, just the same as if the matter were contained in a Bill in the ordinary way before this House. That was the reason why the Select Committee insisted that the power of the Seanad in dealing with those orders of Ministers should be exactly the same as the power of the other House. I respectfully ask the Seanad not to give way to this at all, because it is a matter of very great importance, and they might very well, without knowing it, lose the unfettered power of amending legislation which they have in every case.
I am merely speaking from memory, but my recollection is that in the case I mentioned of the Judiciary Bill, it contained exactly clauses the same as were inserted by the Committee in this Bill. Under that Bill the regulations about procedure were to be laid before both Houses, and either House had the power of annulling them.
Apart from the actual merits or demerits of this amendment there is a lack of consistency in the procedure adopted by the Government in regard to the annulling of orders made by the Minister. The Civil Service Regulation Act, 1924, has a clause, Section 9, in which it is provided that the Minister for Finance may from time to time, make regulations for controlling the Civil Service of the Government of Saorstát Eireann, and to provide for the classification, remuneration, and other conditions of service of persons employed, permanently or temporarily. It is a similar regulation to this, embodied in Section 7 of the Bill now under discussion. It covers the rates of pay and general conditions of service.
The procedure adopted in the Civil Service Regulations is quite different to that suggested in the Bill before us. Section 9 (2) of that Act states: "All regulations made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after they are made, and if both such Houses shall, within the next twenty-one days on which either House has sat after such regulations are laid before the Houses, pass resolutions annulling such regulations, such regulations shall be annulled accordingly, but such annulment shall not prejudice or invalidate anything previously done under such regulations." The Houses are placed on an equality in regard to the payment of the Civil Service, though not in regard to the payment of the police, which is only another branch of the Service, and the procedure of a Money Bill is introduced by the Minister this time. We ought to have some consistency in the policy to be adopted in regard to these Orders. The Minister, towards the end of his speech, laid it down that it was undesirable and practically improper, that the regulations of any Minister should be annulled, save by the House to which he is directly responsible. As the Cathaoirleach has pointed out, in the Courts of Justice Bill, it is possible this House may annul an Order made by the Minister for Justice himself, and the same is true of the regulations made by him in respect of the Public Safety Act, and I think the Housing Facilities Act, and a number of other Acts. This House has a right to annul the Order, at any rate without the concurrence of the Dáil.
In some cases both Houses must pass identical resolutions, but in the Acts I am referring to only one House need pass a resolution. Therefore the condition he has outlined has not been upheld for any previous legislation, and this suggested procedure before us now is a new development altogether, and seeks to introduce the money order procedure into any Bill of which money is part and involving any regulation made by the Minister. It is not correct, of course, to say that this House would have a right, if an amendment inserted in Committee were retained, to amend the Order; it can only annul it if the amendment is retained. But there is a bigger question than the rates of pay involved in this regulation, as will be seen in Section 8, which deals with pensions, allowances and gratuities, and the conditions under which the same are to be payable, "and may by any such order prescribe penalties for any fraudulent conduct in relation to an application for any such pension allowance or gratuity." In other words, the whole conditions of the service of the police force are safeguarded and dealt with. The suggestion is that that should be treated as a purely money or appropriation matter in this Seanad, and that we shall only have power to make recommendations. I do not suppose any Senator is over desirous of seeking any particular power in regard to finance, but I think that the House should be slow to allow any encroachment upon the powers conferred on it under the Constitution. This, certainly, is rather an advancement in that direction. I do not say that there is any ulterior motive in that, but quite unconsciously the Government are stealing away the powers which the Constitution undoubtedly confer upon this House.
I move to delete sub-section (2) and insert in lieu thereof the following two new sub-sections:—
(2) No order made under this section shall come into operation unless and until it has been laid before each House of the Oireachtas and approved by resolution of Dáil Eireann.
(3) Any recommendation made by Seanad Eireann in respect of any such order within the next twenty-one days on which Seanad Eireann has sat after the order is laid before it shall be duly considered by Dáil Eireann within the next subsequent fifteen days on which Dáil Eireann has sat, and Dáil Eireann may, within such fifteen days, if it has already approved of the order, withdraw by resolution such approval, in which event the order shall be annulled, but without prejudice to the validity of anything previously done under the order.
I beg to second the amendment.
I would like to say just a word upon this, and what I have to say is substantially the same as what I said on the previous section. These regulations deal with payments out of money levied in taxation. Our contention is that payment of that kind should be made only on a Vote, and only on the responsibility of people answering politically to the electorate. This Assembly does not answer politically to the electorate. It is not responsible; not even those members of it who were appointed on the nomination of the President have any responsibility through the President to the people. Once the act of the appointment is completed, then they are absolutely independent. Speaking now in no derogatory way, I say this body has no political responsibility, either collectively or individually, and it is wrong in principle that it should take power or attempt to assume power either over legislation or regulation that deals purely and simply with money matters. Now, what would happen in the ordinary course if regulations of this kind dealing with the pay and allowance and gratuities or pensions of the Guards were annulled by this Assembly, and if, in the opinion of the Minister, they were unreasonably annulled? What would happen is, that the Minister would embody the subject matter of these regulations, whether dealing with pay or pensions or anything else, in a Bill, pass that Bill through the Dáil, and that Bill would, I contend, inevitably be certified as a Money Bill, and the maximum powers of the Seanad after that would be to make a recommendation.
But in that case you would be acting quite regularly; in this case it would be irregular.
As the Minister has referred to this question again, I wish to raise one point that strikes me. He suggests that this regulation in regard to Bills should be strictly limited in regard to money. Reading the section in the present instance, I do not see how that limitation is justified. These conditions may mean anything or they may mean nothing. They may mean that certain regulations in regard to pay should be applicable to those of the Civic Guard who have a knowledge of Irish or who obtain a certificate of proficiency. It might lead to the raising of all sorts of technical points incidental to the rates of pay.
There would still be the conditions on which the money is paid.
I submit everything is the condition under which the money is paid. You can stretch that argument to any extent. Apart altogether from the Constitutional issue which, I submit, overrules the whole matter, there would be scope for the Minister to introduce a number of matters that would be very remote in regard to money matters, and you would have words tacked on to money regulations under the pretext of money regulations, dealing with a number of purely administrative acts. I am not going into the question as to whether this body has the power to deal with administrative acts. I do not think that arises at the present moment.
I would suggest that the Minister should not over-emphasise the non-responsible character of this Chamber. It is presumed that it will be as responsible, and as democratic, as any Second Chamber in the world after a number of years.
I was dealing with present conditions.
After ten years from now this Chamber will be a completely elected body. The Minister suggests, because the present Chamber was elected under extraordinary circumstances, over which the members had no control, that it should be rather disposed to hand away the rights and privileges given it by the Constitution, thereby depriving its successors of the rights they were entitled to as the first Seanad of Saorstát Eireann. We have to make traditions and to hand them down unsullied and untarnished to those who follow us. For that reason I think the circumstances under which the Seanad was first established should in no way influence its decision.
I was rather astonished to hear the Minister place such absolute reliance on the fact that these regulations, in so far as they refer to pay and money matters, would be certain to be certified as a Money Bill by the Ceann Comhairle. If that is so, the Minister knows perfectly well that the Seanad is absolutely prepared to accept the ruling of the Ceann Comhairle. If the Government believe the case is so clear, and are so absolutely certain of the regulations being certified as a Money Bill, surely it would be possible for them to have the part dealing with money matters certified by the Ceann Comhairle as such. No question would then arise between the two Houses. That would save trouble and not raise a big constitutional question like this when there is such an easy way of getting out of it.
Of course, it would not be in the power of the Ceann Comhairle to certify part of a Bill as a Money Bill. The Government could take these sections out and introduce them in a separate Bill. They could not ask the Ceann Comhairle to rule that particular sections in the Bill constitute it, per se a Money Bill.
I quite agree. What I am pointing out is that under the circumstances it seems to me to be the duty of the Government to make two Bills of it instead of one, and let the Ceann Comhairle decide if it is a Money Bill or not. We would then find out all that we want to know. I think there are certain things, from the administrative point of view, which the Minister thinks would make it a Money Bill. As far as one can judge, the Ceann Comhairle would decide that it is a Money Bill. The Seanad will keep its right in the meantime to annul. I think it would get over the difficulty if it was decided if it was a Money Bill or not. I cannot see why the Seanad should be asked to give up its undoubted privilege in matters of this kind.