Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Wednesday, 20 Nov 1929

Vol. 13 No. 2

Ministerial Orders and Regulations. - Examining Committee.

I ask the House to adopt the following motion:—

That it be an instruction to the Committee on Procedure in revising the Standing Orders of the Seanad to make provision for the appointment of a Standing Committee whose function it shall be to examine all orders and regulations made by Ministers of State which are required by statute to be laid before the Oireachtas, and when they deem it necessary to report to the Seanad respecting the purpose and effect of such orders or regulations.

This is a matter which I referred to in the course of another motion. That was a motion made a year ago, but it was at that time associated with a wider and more comprehensive proposition. I was advised then that had I dealt with one subject alone it probably would have been adopted without question. The Seanad will be aware of the fact that in the course of British legislation, and also in the course of Free State legislation, it is provided that to carry out the purpose of certain enactments Ministers may make orders and regulations. In some cases orders and regulations must be laid upon the Table, and before becoming effective must receive approval by a positive vote of both Houses. Those cases are rather few. In the great majority of such cases, where orders take the place of enactments, it is required that such an order be laid upon the Table, and if within a given period, usually twenty-one days, under Free State legislation either House passes a resolution annulling or disapproving of such order, such order shall be no longer effective. The importance of these orders varies very greatly. The great majority of them are purely formal and deal with Departmental matters, and I think would be quite out of the range of ordinary statutes.

Some of the orders that are capable of being made by Ministers do, in fact, alter the statutes and make very serious changes in the law. To give an instance of that, I may say that we are living since 1923 under the Local Government Temporary Provisions Act. I have referred to this before, but it is worth repeating. It was intended that that temporary Act should be supplanted by a permanent Act within a year. It is now 1929, and this Act passed in 1923 is still a temporary Act. It will be re-enacted, I suppose, before the end of the year. Under the provisions of that Act the Minister has been enabled by orders to alter the whole law relating to the relief of the poor and to a considerable extent the law relating to local government. Those alterations have been effected by orders laid upon the Table.

Both Houses of the Legislature and each individual legislator have had the responsibility of disapproving of them. In order to do that the legislator should bring before the House at least some reason why any order of the kind should be disapproved of. I am not passing any comment as to whether these orders or regulations are good or bad. I am drawing attention to the fact that statute law may be altered by the exercise of the Minister's powers. The Minister makes that alteration by order to be laid upon the Table. The Defence Forces Act is alterable, or I should say the administration portion of it is alterable by the orders laid upon the Table. It is true to say that the original Act of the National Health Insurance has been entirely altered and would not now be recognised as being the law prevailing to-day. The alterations therein have been effected by orders laid upon the Table.

This question has had a good deal of publicity lately as part of a very much wider question through the publication of a book by an eminent judge. I am not at all asking the House to make any comments—bad, good or otherwise— upon the question raised in the recently published book of Lord Hewart. But one aspect of the question is an aspect that I am asking the House to deal with and that is to say where the statutes allow of orders to be made by a Departmental Minister, which orders have the force of law, and where such an order is laid upon the Table thereby imposing upon the Legislature the responsibility for seeing that its intentions are not violated, that this House at any rate should depute a number of its members to exercise a special supervision and examination of those orders.

Responsibility to-day is equally placed upon the sixty members of the Seanad and, I suppose, the 152 members of the Dáil. But because it is so diffused I think I am not exaggerating when I say that that responsibility is not given effect to. These orders are not examined. Nobody knows whether they carry out or depart seriously from what the individual believes to have been the intention of the Legislature. What I seek to have established is that a Committee of the House shall have the very special duty placed upon them to examine these orders as they are laid upon the Table. As I have already said the vast majority of them are formal, and will not occasion any difficulty. Some of them may occasion difficulty. And I think that the Committee would obviously have the right of seeking advice and information from the Department concerned as to the intention and purpose. If it appears entirely innocuous or merely departmental, the Committee will have no need to take any further action. But if the Committee is of opinion that certain important issues are raised it would be incumbent then upon the Committee to report to the Seanad of the purport and possible effect of the order. Then if the Seanad desires it can take action. If the Seanad thinks there is nothing requiring action to be taken, the order would pass without any further comment.

What is aimed at in this resolution is that some special responsibility should be devolved upon a Committee of the House so that the orders made by a Minister which have the force of law should have, to a greater extent than at present, the consent of the Legislature, or at least this House of the Legislature, and that closer examination would be made of these orders so that possible departure from the intentions of the Legislature by order should not be made without such matters being reported to the Seanad. I do not think it is necessary to go into greater detail. The matter is extremely important and I think it is right and proper that this House should take upon itself this function whether the other House does it or not. It would I think answer some part of the indictment that is made against the parliamentary system and against that alleged defect in the parliamentary system which allows executive authority to legislate without the practical sanction of the Legislature. I beg to move the motion.

I would second the motion if the proposer would agree to a small alteration.


If you second the motion you can debate it afterwards.

I second the motion, which I think is a very useful one. I do not intend to speak very long upon this subject, which is most important. There is a tendency in modern legislation to take away power, both from the Parliaments and the Courts, and to concentrate it in the hands of Ministers. It is often said that that is a tendency which is inherent in modern legislation. Whether that is so or not. I think it is incumbent on this House at least to know what it is doing when it allows rules and regulations to remain on the Table without any comment, or without any examination by members of the House. There are certain statutes which have been passed, even in the short time that I have been in the Seanad, which provided for the making of rules by a Minister. These rules have often invaded private rights, and they frequently provide that a Minister is to be the sole judge as regards private rights. They prevent the individual from appealing, even to the Minister. Some of the rules which have been made under Acts of Parliament passed here have even gone so far as to authorise a Minister to ignore the law of the land. These things all happen. It is said that it is necessary to give Ministers these great powers. It is sometimes said that the public have this protection, that the rules are not to have the force of law unless they receive the assent of the Dáil or of the Seanad, as the case may be. The only way in which they do receive the assent of the Dáil or the Seanad is that they are laid on the Table of the House. Sometimes they have to remain on the Table of the House for three weeks, sometimes longer, sometimes shorter.

I take it that the object of Senator Johnson's motion is to see that it shall be the business of somebody to read these orders, and when they are read and examined by a small committee, that they shall be brought before the House in case they offend against the law or against the Constitution, or in case they violate to an excessive degree the private rights of the citizen. Senator Johnson has well said that it is the business of 153 men in the Dáil and of 60 men and women in the Seanad to examine these rules. Speaking for myself, I do not think I have examined one set of rules: what is the business of everybody is the business of nobody. Consequently, these rules are never examined.

The reason I support the motion is this, that it is advisable, in the public interest, in the interests of Parliament, and for the purpose of securing the rights of individuals, that some committee of three, four, or five members should be induced to take upon themselves the duty of examining these rules and of reporting to the Seanad the result of their examination.

I find myself quite in agreement with the arguments that have been put forward both by the proposer and the seconder of this motion, but I suggest that the motion will have to be amended if the idea that Senator Johnson has in view, and with which, I think, we are all thoroughly in accord, is to be carried out. It states: "That it be an instruction to the Committee on Procedure in revising the Standing Orders of the Seanad to make provision for the appointment of a Standing Committee." It seems to me that this is an urgent matter, a matter that ought to be dealt with as soon as possible, and it would be postponing the appointment of this committee for a very long time if we adopt those words. I suggest that Senator Johnson might agree to the substitution of these words, or words which would have the same meaning, which would really carry out what he stated to be his object: "That the Seanad appoint a committee of seven members to be selected by the Committee of Selection, whose function it shall be to examine all orders." That would bring the matter to a head at once. I believe it is a matter that should not be allowed to go on any longer, but that it should be decided at once.

I am not rising to discuss this motion, but to ask the Senator who sponsors it to agree to deferring further consideration of it until the next meeting of the Seanad. It raises certain important issues, and certain implications have been read into it by Senator Comyn which I think it is important to analyse fully before we arrive at a decision. Certainly if Senator Barrington's amendment were agreed to now we would be precipitated into a decision which we might, upon further consideration, find was not the happiest decision to arrive at. I do not want to debate the matter; I do not want to deprive myself of the right of discussing it on a future date if what I suggest is agreed to, but I am not approaching it in a spirit of antagonism. I would like more time to consider it.


Do you wish to move the adjournment of the debate?

Yes, if I am in order.


You are in order.

I move the adjournment of the debate until the next meeting of the Seanad.

I second.

I would point out the undesirability of adjourning a debate of this kind. I think a decision might well be taken on the motion now. I am not obstinate on that, but it seems to me that the justification for the adjournment of the debate was the speech of Senator Comyn. I want to say at once that the purpose of the motion is not at all to set up a committee of critics of the Ministry, or of persons who are fearful that Ministers are doing things very harmful and wrong as against the citizen. I do not want it to go abroad that this is a motion which is directed against the executive authority. It is rather a motion which seeks to throw upon the Seanad, in a more effective manner than the present practice achieves, a duty which it has already. I think it would be wrong if the impression was to go abroad that this was a motion directed against an executive of any kind, and that therefore the Executive should resist it. If the House would agree with that view and realise, too, that the motion as drafted is an instruction to the Committee of Procedure that when they are revising the Standing Orders they shall bring this as a further proposal, a proposal which at the moment does not exist in the Standing Orders, and may not, without such an expression of opinion from the Seanad, be embodied in the revised Standing Orders, which I understand are under consideration by the Committee on Procedure, it will be still possible for the House to consider whether this should be an established rule, because when the Standing Orders come to the House in a revised form, as I suppose they will before many weeks are over, the House will have every opportunity of deciding whether this should be one of the Standing Committees. With that made clear, I think that the adjournment ought not to be approved of, and that the House might well take a vote on the motion itself.

Any observations of mine were not intended to reflect on any particular executive. This is a matter which is occupying the attention of legislatures not merely in this country but in every European country at the present time. The tendency of modern legislation is to leave it in the hands of Ministers to make rules which in fact are statutes. It has been referred to in England, and I think in other countries. This is not the first or the second time that it has been referred to here, and any observations of mine were simply intended to preserve the powers of Parliament and, as far as possible, the rights of individuals. I hope in voting on this motion nobody will take any observations of mine as intended to be of a Party character. They are simply prompted by the desire to see that constitutional privileges and individual rights are preserved, as far as possible, in the tangle of legislation that is going through this Parliament.

I seconded the motion for the adjournment of this question until the next meeting of the Seanad for this reason: theoretically there is everything to be said for Senator Johnson's motion, but the practical carrying out of it will be immensely difficult. I see immense difficulties in the matter, and I would urge Senator Johnson not to press this motion this evening, but to let us think it over between now and this day week.

I agree.

Motion adjourned.

The Seanad adjourned at 5.53 p.m.