Seanad Éireann díospóireacht -
Wednesday, 4 Dec 1929

Vol. 13 No. 5

Constitution (Amendment No. 12) Bill, 1928—Report Stage.

Leas-Chathaoirleach

The amendments in my name on the Paper are Government amendments. I move:

Section 1. In line 30 to delete the word "is" and before the word "or" in line 31 to insert the words and figures "is sent by Dáil Eireann to Seanad Eireann for its recommendations under Article 38 of this Constitution."

Under the Bill as it stands, the resolution of either House or the vote of Seanad Eireann which would lead to the setting up of a Committee of Privileges to determine whether a Bill is or is not a Money Bill must take place before whichever of the following events will first occur: (1) the expiration of seven days from the day on which the Bill is certified by the Chairman of Dáil Eireann to be a Money Bill, or (2) the return of such Bill by Seanad Eireann to Dáil Eireann under Article 38 of the Constitution. It has been argued that a delay might occur between the certification of a Money Bill by the Chairman of the Dáil and its transmission to Seanad Eireann, and for that reason the seven days provided for in (1) might elapse in whole or in part before the Seanad would have an opportunity of exercising its powers under this provision. I might say here that Senator Connolly's amendment, which is sandwiched in between two amendments in my name, is practically in line with one of the amendments in my name, that in fact Senator Connolly's amendment aims at remedying this. Its effect would be to alter (1) to read as follows: "the expiration of seven days from the day on which a Bill certified by the Chairman of Dáil Eireann to be a Money Bill is received by Seanad Eireann. The seven days' period would then run, not from the date on which it is certified, but from the date of the receipt of the Bill by the Seanad.

Cathaoirleach

The sending is what you are dealing with, not the receipt. The receipt is Senator Connolly's amendment.

Mr. Kenny

They practically deal with the same thing.

Cathaoirleach

Some people might not think so.

Mr. Kenny

These Bills are sent by hand to the Seanad, and they reach here practically on the same day as that on which they are sent. The days are practically identical, so that both amendments are directed towards the same object, but the advantage in favour of my amendment is that the words "sent to the Seanad" are used in Article 38 of the Constitution. They are a sort of basic term. The 270 days in which we may hold up a Bill date from the sending of the Bill by the Dáil to the Seanad, and also there is a further period in Article 38 of 21 days within which the Bill must be returned from the Seanad, and that also dates from the sending of the Bill to the Seanad. So that to bring these days in line and not to introduce another date into the Constitution it is suggested that the time should be when the Bill is sent by the Dáil to the Seanad. A Bill will reach the Seanad on the same day as it is sent, and Senator Connolly's amendment practically amounts to the same thing.

Mrs. Costello

I second the amendment.

Mr. Connolly

I submit that the amendment will not carry us much further than the original clause of the Bill. I may be wrong in that; there may be something implied in the sending of a decision to the Seanad that I do not know about; but I can conceive a decision being sent here when the Seanad is not in session. I am not clear about that. If it will only be sent when the Seanad is in session, what is the objection to the words "is received by Seanad Eireann"? If it would be sent only when we are in session surely it is very easy to change the word to "received" instead of "sent." Frankly I cannot see Senator Kenny's point that his amendment and mine mean the same thing. I think that mine is more intelligible, that it will definitely give us a seven days' period from the time of receipt. His is from the time it is sent. If he can satisfy us that the time of sending is the same as the time of receipt I submit he has no argument against my amendment. I do not know that I am very much concerned about the point of the Constitution. My point is that we ought to be clear that we will have seven days to consider this from the receipt of it. I do not think that the amendment proposed by him gets us any further than the position laid down in the first clause of the Bill.

Mr. Douglas

I do not think we need spend very much time in discussing whether or not the two amendments are the same, but I think we have got to consider whether the Government's amendment means what the Seanad last week more or less decided it would like. I did not understand that Senator Connolly wished that the words "received by Seanad Eireann" should mean "in session," because while if there was an unlimited time for consideration I would agree that it would be desirable that it should be in session, I would like to suggest to him and to the House that it ought not to be when we are in session, but that immediately, at the earliest possible moment after the Bill is sent here, the Clerk should notify every member, and that the seven days should run from then. My reason for that is that there are only twenty-one days altogether, and that if we were to wait until a meeting of this House were summoned, and then had twenty-one days running and the seven days for the Committee to meet, and if they decided that the Bill was a Money Bill, we might never have the chance of considering it at all, because although Senators might challenge the decision of the Ceann Comhairle, that is no proof that the Committee might not decide that the Ceann Comhairle was not right. In that case, if we allowed twenty-one days to elapse we would not have the Bill before us. Therefore, I think that the Government's amendment is reasonably satisfactory and is the best way to meet the situation.

Mr. Comyn

If Senator Kenny is right in saying that his amendment is the same as Senator Connolly's amendment, I do not see why he introduced his amendment at all, because Senator Connolly's amendment was first on the Paper, and if it met the situation there is no reason at all for this discussion on Senator Kenny's amendment. But Senator Kenny's amendment does not meet the situation. I have inquired rather closely into the matter. This is legislation dealing with the Constitution. I think everybody will agree that it is desirable that it should be clear, precise and definite, and that it should meet every possible situation likely to arise.

I find that there is no statutory provision for the sending of any Bill from Dáil Eireann to Seanad Eireann; there is no actual machinery for the sending up of a Bill, and there is no time limit. It is probably a matter that was overlooked in the general course of business. As to the time when a Bill passed by the Dáil is to be sent to the Seanad, there is no provision at all. As I say, this is a constitutional measure. Senator Connolly's amendment would make the matter very precise. There can be no reasonable objection to it from a legal point of view or from a constitutional point of view. If the Seanad is to have seven days to consider whether a Bill is a Money Bill or not, it is desirable that they shall have the actual seven days, and it is desirable that the time should run from the date when the Seanad received the Bill. Whether it is the Seanad in session that is to receive the Bill, or whether it is the Chairman or the Clerk, is a matter which I for one would be prepared to leave to the discretion of the persons responsible. But I think no loophole should be left, that the seven days should be given to the Seanad from the day when the Bill is received.

Mr. Brown

What is the meaning of "received"?

Mr. Comyn

I am not asked to construe legislation here, but my impression is that the words "received by the Seanad" would be receipt by the official of the Seanad—that is, the Clerk or the Chairman. That is what I should say. Suppose a Bill is certified to be a Money Bill by the Chairman of the Dáil on Friday evening, there is no provision for the publication of that certificate to any person; there is no provision requiring the Chairman of Dáil Eireann, or the Clerk of Dáil Eireann, to forward that Bill with that certificate to Seanad Eireann. There is no time limit within which they are to do it. Surely that ought to be a matter of legislation, a matter which would be put absolutely beyond doubt or dispute. Senator Connolly's amendment does put it beyond doubt, because instead of saying that the seven days shall run from the day on which it is sent, it provides that the seven days shall run from the day on which it is received by the Seanad—that is, by the permanent officials of the Seanad, as I take it.

Mr. Brown

Well, put that in.

Mr. Comyn

I would be prepared to do so.

Cathaoirleach

We have no amendment to that effect on the Paper.

Mr. Comyn

No, there is no such amendment before you, and therefore Senator Connolly's amendment stands. I think it is preferable to the other.

Mr. Douglas

I would point out that Article 38 of the Constitution does provide that every Bill passed by the Dáil must be sent to the Seanad.

Mr. Comyn

But what is the time in which it must be sent? This is the question of the time in which it must be sent.

Mr. Brown

There is, as a matter of course, an order that the Bill be sent to the Seanad after it has been passed by the Dáil.

Mr. Comyn

Yes, granted it must be sent, but within what time?

Mr. Brown

At once.

Mr. Comyn

You are limiting the powers of the Seanad to seven days, but you have no limitation of time within which a Bill must be sent to the Seanad after being passed by the Dáil.

Mr. Douglas

It cannot come in until it is sent, and the period of twenty-one days does not begin to run until it has been sent.

The President

There is an extraordinary weakness on the point put forward by Senator Comyn and Senator Connolly and that is that nobody can explain what is meant by "received by Seanad Eireann." Nobody has attempted to explain it, and I thought that Senator Comyn, having some knowledge of law, would have been prepared to advise his brother Senators that he would require some little support for his amendment if we were to adopt it, because it would leave things worse than they are. As far as the sending of Bills by Dáil Eireann to Seanad Eireann is concerned, we shall have had seven years experience at the end of this week, I think. During that time we have had a very large number of Bills and none of them were delayed. I do not believe that a single Bill was delayed an hour. On one occasion, I think, a Bill passed shortly after midnight and possibly no responsible officers of the Seanad were here to receive it then. But it was sent. As far as the allegation is concerned no allegation of delay of any sort or kind can be put on record, and the words are mandatory. The Bill is to be sent; Bills have always been sent, and our experience over seven years has been that no delay in sending has taken place.

The second point was Senator Comyn's statement that we were limiting the Seanad to these seven days. As a matter of fact, this Bill is extending the period from three days to seven, and during these seven years when a large number of Money Bills were sent up no question of any kind arose. As I said on the last day, the term "Money Bill" is one which does not admit of any elasticity, as the Ceann Comhairle is bound by the terms that are laid down in the Constitution regarding that, and as no question has arisen regarding their interpretation. This is to deal with a situation which might arise in which there was a question of doubt as to whether or not a Bill is correctly termed a Money Bill. The sending by Dáil Eireann is already in one or two places in the Constitution. There is no such description given by the framers of the Constitution as "received by Seanad Eireann," and the necessary steps will be taken by the Seanad to ensure that on particular occasions meetings will be summoned to consider this matter.

Colonel Moore

The President thinks that he makes very clever distinctions. He complains that there is no means of distinguishing what Seanad Eireann means.

The President

Oh no, not at all.

Cathaoirleach

He suggests that it would be very hard to define "received by Seanad Eireann."

Colonel Moore

He makes a distinction as to whether a Bill is to be sent or received. He hangs on to "received," but exactly the same difficulty arises in regard to "sent." If there is any value whatever in his supposition his objection would apply equally to both amendments. It seems to me quite clear, and it has always been understood in the Seanad that the Chairman of the Seanad represents the Seanad and that when a thing is sent to him it is sent to the Seanad.

The President

That is what I have already said.

Colonel Moore

Another thing that the President has said was that during all those seven years nothing was wrong. But that does not prove, when the President himself may be somewhere else, that something may not go wrong then.

The President

That is very hard on your own Party.

Colonel Moore

He is such an excellent President that, no doubt, everything will be all right in his time. One can quite imagine that whoever has the duty in the Dáil of sending up Bills may wish to do perfectly right, but things are lost en route very often; people sometimes lose their purses on the road, and a particular Bill may be lost on the road, may be put into the post or into an office and may be taken away by somebody who has no right to take it away. All these things may happen. I do not say they are likely to happen, but they may. They may not have happened for the last seven years, but on the other hand they may have for all we know, without the attention of anybody having been called to it. It would be quite easy to change the word “sent” to “received.” The time when the Chairman of the Seanad receives it on behalf of the Seanad is the time on which we should go. Why quibble about these words “sent” and “received”? “Received” is what is meant, theoretically. It seems to me that the simpler and the easier thing would be to accept this amendment, which cannot be wrong, instead of having some other thing which may not turn out to be right.

The President

I desire just to make a personal explanation. The Senator, I think, attributed to me credit for having Bills properly and duly sent to the Seanad. That is no part of my duty. It is the Ceann Comhairle's duty.

Mr. Connolly

rose.

Cathaoirleach

As the Senator has already spoken on this amendment I cannot allow him to speak a second time.

Mr. Connolly

There is just one remark that I want to make.

Cathaoirleach

If the Senator is agreeable to have the two amendments be taken together, then he can reply.

Mr. Connolly

I have made the only argument that I desire to make on the amendment. What I want to state is this—it has already been stated by Senator Colonel Moore— that now for the first time we have got some idea of what sending means and what receiving means. I may say that both are equally obscure to me still, and I do not know that the President has made the matter any clearer. He said that the question of receipt is not defined. I suggest that neither is the sending period clearly defined. What constitutes sending, I still do not know; whether it means sending to the Cathaoirleach or sending to the House in Session.

Mr. Kenny

In the absence of a definition we must, I think, only take what the usage has been. During the past seven years the usage has been that, when a Bill has passed through all its stages in the Dáil, it is sent to Seanad Eireann— that is, to the Clerk of the Seanad. If that is so, then the sending of a Bill to the Clerk of the Seanad constitutes sending in the absence of any clearer definition in the Constitution.

Mr. Connolly

Would the Senator tell us what constitutes sending?

Mr. Kenny

In the absence of any more specific explanation of the meaning of the word "sending," if the usage has been to forward a Bill to the Clerk of the Seanad that, I think, constitutes sending in the sense that the word is used in the Constitution.

Mr. Connolly

We have only Senator Kenny's word for that.

Mr. Kenny

I contend that sending and receipt are almost identical. If a messenger is sent with a Bill that has passed all its stages in the Dáil and he hands it to the Clerk of the Seanad, and if that constitutes sending, then sending and receipt are practically identical. Senator Connolly's amendment would, I think, after hearing the discussion that has taken place, be an improvement; that the receipt of the Bill should run from the time the Bill is received by the Seanad in session.

Cathaoirleach

We have no such amendment before us at present.

Mr. Kenny

I submit that the difference between the two amendments as worded is negligible.

Cathaoirleach

I am now going to put the amendment proposed by Senator Kenny.

Mr. Connolly

I rather gathered from Senator Kenny's remarks that he was withdrawing in favour of mine.

Cathaoirleach

I do not think so.

Mr. Kenny

If you add the words "in session."

Amendment 1 put and declared carried.

Mr. Connolly

In view of the decision of the House on the last amendment, I ask leave to withdraw amendment 2.

Amendment, by leave, withdrawn.

Mr. Kenny

I move amendment 3:

Section 1. To delete in lines 32-33 the words "Article 38 of this Constitution," and to substitute therefor the words "the said Article 38."

Mr. Brown

I second.

Amendment put and agreed to.

Mr. Kenny

I move amendment 4:

Section 1. To delete lines 41-47 inclusive and to substitute therefor the following:—"the question whether the Bill is or is not a Money Bill shall forthwith be referred to a Committee of Privileges consisting of such number (not exceeding three) of members (if any) as shall be elected by Dáil Eireann within seven days after such reference, such number (not exceeding three) of members (if any) as shall be elected by Seanad Eireann within such seven days, and a Chairman who shall be the senior judge of the Supreme Court able and willing to act and who in the case of an equality of votes, but not otherwise, shall be entitled to vote."— Senator Kenny.

This is the amendment which the President indicated in the Seanad on Wednesday last that he would bring forward in connection with this Bill as one that he would be prepared to accept. In effect, it would achieve the same object as the amendment moved on the Committee Stage by Senator Brown and Senator Douglas.

Mr. Brown

There was an amendment on the Order Paper on the Committee Stage of the Bill by Senator Douglas and myself, and this was the alternative mentioned by the President. On behalf of Senator Douglas and myself I am prepared to accept the amendment moved by Senator Kenny now. That is with regard to the first half of our amendment. But the second part of our amendment will have to be moved later on. The House, however, may take it that we accept what has just been moved by Senator Kenny. It is to go in as a substitute for our amendment down as far as the sentence commencing with the word "If."

Cathaoirleach

Am I to take it that the Senator is not quite satisfied with the amendment that has been moved by Senator Kenny?

Mr. Brown

It does not cover all that we want to have covered.

Amendment 4 put and agreed to.

Mr. Brown

I now move the following amendment. As Senators will see, the amendment that has just been accepted has been substituted for the first portion of the amendment in the name of Senator Douglas and myself on the Committee Stage. What I am now asking the House to accept is the second portion of our amendment, which reads:

"If any member of such Committee constituted as aforesaid ceases to be a member or for any reason becomes incapable of acting as a member thereof, the remaining members of such Committee shall constitute and act as the Committee of Privileges for the purpose of this section."

That provides for a case that is not provided for by the other amendment—of a member who, after the appointment of the Committee, dies or becomes so seriously ill that he cannot act.

Mr. Douglas

I second.

The President

I have some doubt as to whether it is necessary to make this provision. The Committee of Privileges has the right, I understand, to appoint such members, as it is advised, in the ordinary normal way. If a person ceases to be a member of the Committee through death, resignation or something of that sort, my information is that the Committee of Privileges is entitled to fill up the vacancy. If that is so, and I think that it has worked out in that way——

Mr. Douglas

I am afraid not. I think the point made by the President is right in regard to committees appointed in the ordinary way by the House. But this is the case of a committee specifically provided for in definite terms in the Constitution itself. It is a matter of very grave doubt whether any less number than that actually provided for in the Bill as now amended can act. It is because we have a very grave legal doubt that the committee would be valid and entitled to act that we are anxious to add these words. If there was no legal doubt on the matter we would not wish to add these words.

The President

The amendment which we have just passed appears on the face of it to make such provision as is sought to be made here. That amendment provides "that the question whether the Bill is or is not a Money Bill shall forthwith be referred to a Committee of Privileges consisting of such number (not exceeding three) of members (if any)." Obviously, two would be included.

Mr. Douglas

Would the President read on?

The President

"As shall be elected by Dáil Eireann within seven days."

Mr. Douglas

The word "appointed" governs that.

The President

Even as it stands there is nothing to make it essential for a member so appointed to sit and act on the Committee. I would like, before agreeing to this, to have an opportunity of examining it. I was not aware that Senator Brown would have pressed the second portion of his amendment. If the Senator would be willing, I would like to have an opportunity of looking over the matter.

Mr. Brown

I admit that it is a very difficult legal question. I have myself taken the best legal advice that I could get on it, and that is the opinion that I got, that if on a Committee of three, duly elected in that way, one died, the Committee could not act without a provision of this kind. The question is such a serious one that I think provision ought to be made to meet it in the Bill. I am quite willing, of course, that the President should have time to consider it.

Cathaoirleach

Is it agreed then that the Report Stage of this Bill be adjourned until Wednesday next?

Agreed.