Emergency Powers (No. 173) Order, 1942—Motion to Annul.

Sir John Keane

I move: That Emergency Powers (No. 173) Order, 1942, made by the Government on the 1st day of May, 1942, be and is hereby annulled.

During my almost 20 years unbroken membership of this House, I do not think that I have had to bring before it a more important matter than is contained in the motion on the Order Paper. It may be remembered that, when this unfortunate war broke out, Parliament gave the Government very wide and, I might say, very necessary powers. It gave them practically unlimited powers to deal with production, liberty of the person, censorship and other matters. There was practically no limitation on the powers given to the Government, except the limitation regarding a declaration of war and the conscripting of citizens into the armed forces. One essential safeguard was retained by Parliament. That was that the Government had to proceed by order in the exercise of the powers they got and that any Order the Government made could be raised in this House by way of motion for annulment. It is that one remaining power which democracy possesses to-day that I am now exercising.

If Senators turn to the basic statute under which the whole series of orders we have had during the past three years have been issued, they will find that, under Section 2, the Government may, whenever and so often as they think fit, make by order—I am leaving out the words that are not essential — such provisions as are, in the opinion of the Government, necessary or expedient for securing the public safety or the preservation of the State or for the maintenance of public order, or for the provision and control of supplies and services essential to the life of the community. It goes on to set out, in a number of sub-paragraphs down to the letter (p), the various matters over which the Government is to have authority. I want Senators to note that these orders were confined to matters which the Government considered were necessary to secure the public safety or the preservation of the State or the maintenance of public order or the provision and control of supplies and services essential to the life of the community.

At this stage, it may well be asked "How can everything a Government propose to do under an order be embodied in the order?" Just as in the case of an Act of Parliament it is not possible to embody every act to be done under the Act in the Act, so it is with orders. The Government takes power, in the case of an Act, to proceed by regulation to amplify the powers it has taken, but these regulations have to be within the powers given by the primary Act. I am only a layman but, if I am right in my contention, these subsidiary powers of operation, as one might say, were taken in sub-section (3) of Section 2. It is a rather involved section. Reading between the lines it shows that the Parliamentary draftsman was probably worried as to how the intention should be expressed. If I may paraphrase the section, it is as follows:—Whenever the Government makes an emergency order, the Government may, in lieu of making provision for or doing any particular thing in or by such emergency order, authorise or empower a Minister or any other person acting on his behalf to do the said thing and for that purpose, subject to such conditions and consents as may be specified, to make, grant, or issue such instruments and give such directions as shall appear to him necessary for the said purpose.

Put into ordinary language, that means that the Order cannot set out all the things the Minister is to do but, if he wants to do a particular thing, he may do it by "instrument"—that is the actual word used. If Senators turn to the definition clause, they will find that "instrument" means an order, regulation, rule, bylaw, warrant, licence, certificate — mark these last words — or other like document. If I read that rightly, every instrument must mean a document in some form or other. The Minister operates the Order by documentary instruments. I think that that is a fair statement of the case.

The next step, following on that Act, is the main Order — Emergency Order No. 224 of 1939. If Senators refer to the dates, they will find that this Order was ready at the time the Act was passed. The Act was passed on September 23rd, 1939, and the very next day this Order appeared. Incidentally, it is rather interesting to note that, unlike a large number of subsequent Orders, this Order is only in one language. I do not make this point for the purpose of casting ridicule on our bilingual methods. There is a purpose, as Senators will shortly see, in these remarks. Ever since the war began, the Government has been acting under this Order of September 23rd, 1939, and this Order derives its authority from the Emergency Powers Act passed the day before. Now we come to Section 31 of this Order. Here I would like to read some significant words: "The Minister, so far as appears to him to be necessary in the interests of public safety or for the preservation of the State or for maintaining supplies or services essential to the life of the community, may, by Order, provide——" Then it goes on to mention a very wide category of activities which the Government can pursue.

We all know and we have all experience of that action under most of these headings. They have power to regulate production, movement of commodities, transport, distribution and sale of goods, and so on. Then in a later sub-section it reads:—

"Any incidental and supplementary matters for which such Minister thinks it expedient for the purposes of the Order to provide, including, in particular, the entry and inspection of premises to which the Order relates by persons authorised in that behalf by such Minister, with a view to securing compliance with the Order;"

and an Order under this Article may prohibit the doing of anything regulated by the Order except under the authority of a licence granted, by such authority or person as may be specified in the Order, and may be made so as to apply either to undertakings generally or to any particular undertaking or class of undertakings, and either to the whole or any part of any undertakings, and so as to have effect either throughout the State or any particular area therein.

No reasonably-minded person during the last three years has had any complaint about this. We all realise that there is a crisis and an emergency, and what very wide powers the Government is entitled to have. I suppose it is your experience, as it is mine, to receive from time to time a number of these Orders by post. It is only a natural temptation not to read them too carefully in many cases. Some are dealing with technical matters such as quotas, fuel production and every conceivable activity. I do my best to run over them to see if there is anything I consider specially important. I happened to read very carefully Order No. 173. It amends Article 31 of the main Order which I have just read, and I ask the House to note very carefully the vital difference between the powers taken in these two Orders. Order No. 173 reads:—

"Article 31 of the Emergency Powers Order, 1939, is hereby amended in the following respects, and shall be construed and have effect accordingly, that is to say: by the substitution of the following paragraphs for paragraph (1) that is to say:—"

And here is the vital paragraph:—

"A Minister may, by Order, or direction (which direction may be given either in writing or orally) provide...."

Then it goes on to provide practically the same wide range of activities as are provided in the previous Order. I ask you to note this, and I ask the Minister to enlighten us as to why it has been necessary to remove in this latest Order any reference to the interest of public safety, preservation of the State and the maintaining of the supplies and services essential to the life of the community. All these limitations for what they are worth are taken out, and the Minister need no longer justify any action he takes within these limits. He is now absolutely and completely without restriction of that kind. But that is not the really dangerous aspect of this Order. You will note that not only can he proceed by Order, but he can proceed by oral direction, if I read the Order aright. The Minister in his wisdom and discretion can proceed by Order, but if he thinks fit to do otherwise he has complete and omnipotent power simply by verbal direction. Nobody will know and Parliament will not be aware of it. His action cannot be challenged and the last vestige of control that Parliament possessed will be swept away. The Minister will be complete and absolute dictator and, moreover, the dictatorship will be made all the more dangerous by the powers of censorship which the Government now enjoy, so that if any action is taken by oral direction of the Minister and the Government do not think fit that any reference should be made to it, either in the Parliament or the public Press, then it will not be known. I consider that is a very serious state of affairs.

It makes it hardly worth while to bear the expense of having Parliament at all. Parliament might as well stay at home and the strain that the holding of Parliament imposes on the transport service could be saved. I ask the House to regard this as a very serious infringement of Parliament's control, in fact, as removing the last remaining vestige of Parliamentary control that exists. For example, the other day the Government took very wide powers in reference to our transport system. Practically a dictator was appointed. That was done by Order. We knew it was being done and the whole wisdom of that policy could have been raised in the House.

What can happen now unless I am mistaken is that the Minister or anybody authorised on his behalf can walk in to the board of a company and say: "I do not propose you should function any longer. I am sending down Mr. So-and-so to take over the whole company." I know the Minister will say that nothing of the kind is contemplated, but I submit that such action is possible under this Order. For that reason, I feel that this matter should be within the knowledge of the House, and that the House should consider seriously, unless the Government can give some undertaking to restore in some form control by Parliament, passing this motion to annul this Order.

Minister for Supplies (Mr. Lemass)

Senator Sir John Keane's dramatic declaration at the beginning of his speech that this was the most important motion that he had brought before the House during his 20 years as a member may have deceived Senators as to the nature of the Order referred to in his motion. The Order is of very minor importance. It effects only verbal changes in Article 31 of Emergency Powers Order No. 224 of 1939. The Senator's declaration was inspired by a misunderstanding of the Order. Orders made by the Government are capable of being annulled by resolution of either House. These Orders frequently confer upon Ministers powers to regulate particular activities by direction. The instruments which the Minister may use in the exercise of these powers to effect the control of activities which they desire to achieve are not submitted to the Oireachtas nor are they capable of being annulled by resolution. The powers conferred upon the Department of Supplies to control supplies or regulate the distribution or production of particular commodities were given by the Emergency Powers Order of 1939. That Order could have been annulled by the Oireachtas by resolution. That could not be done now, but it could have been done within the period specified in the Act. Article 31 of the Order is the operative Article, so far as the Department of Supplies is concerned, and the effect of Order No. 173, made by the Government, is merely to amend it in certain particulars.

I will mention the particulars in which that Article has been amended, just to support my contention that the changes are of no very great importance and do not greatly increase the powers of any Minister under the Order, much less confer upon him the very wide powers which Senator Sir John Keane seems to think Ministers now have—including power to walk into a meeting of the board of directors of the Great Southern Railways and order them to pack up their bags and go. I am not saying that the Government could not make an Order under the Emergency Powers Act which would enable them to do that or to confer on a Minister the power to do it by a new Order.

Mr. M. Hayes

They could not do it orally.

Mr. Lemass

No. The Order would have to be laid on the Tables of both Houses of the Oireachtas, and could be annulled by a resolution of either House. This Article 31 was drafted, as Senator Sir John Keane has rightly remarked, before the beginning of the emergency. It was drafted in preparation for the emergency, and was made effective by the Government the day after the Emergency Powers Act was passed. It has worked reasonably well, but Senators will appreciate that it was drafted at a time when knowledge of the circumstances that would be created by the emergency did not exist. We tried to visualise what those circumstances would be, and to frame an Order which would give the Government powers to cope with them.

As I have said, although the Order has worked reasonably well, experience of its working over three years has indicated that, in certain respects, it was incomplete and that some of the actions taken or contemplated by the Government under it might be questionable in the courts, because of the particular phraseology used. The question of amending the Article only became one of importance when it was decided to introduce a system of rationing by means of a ration book. With that decision and the distribution of ration books to facilitate any future rationing schemes that might be decided upon, it became obvious that certain verbal amendments of the Order were necessary, if the effectiveness of the regulations made concerning the use of those books was not to be impaired, or the legality of the whole procedure made questionable in the courts. The main purpose of the amendment was to make effective the system of rationing by means of ration books.

The changes which were made in Article 31 were, in the main, verbal. The Order provided for, or gave the Minister power to make, regulations providing for the production, treatment, keeping, storage, movement, transport, distribution, sale, purchase, use or consumption of articles of any description. It was necessary to add the words, "restricting or prohibiting" as well as "regulating". In other words, an Order made by the Minister could provide not merely for regulating the production, treatment, storage, etc., of these goods, but also could provide for restricting or prohibiting the production, distribution, keeping, etc., of these goods.

The terms "sale" and "purchase" were expanded to mean "disposal, including sale, or acquisition, including purchase". The paragraph of the Order which gave power to provide for controlling the prices at which articles of any description may be sold has been expanded to give power to control the prices at which articles of any description may be purchased. The power to provide for regulating the carrying on of any undertaking engaged in an essential work has been changed to "the power to provide for the regulating of the carrying on of any undertaking". The words "engaged in any essential work" have been deleted because, quite obviously, the exact significance to be attached to those words could be the subject of dispute, and the question might arise at any time as to whether a particular undertaking was engaged in essential work. For instance, is the distribution of tea essential? One could think of many commodities sometimes classed as luxuries, but which ordinary people regard as essential. It was deemed undesirable that there should be legal arguments and dispute as to the exact meaning of these terms.

A new paragraph has been inserted giving power to provide for requiring persons carrying on any undertaking to keep such books, accounts and records as may be prescribed by or under the Order. There is power taken for the inspection of, and the taking of extracts from, books, accounts, records and documents, for requiring persons to verify extracts taken from books, accounts, records and documents. There is power taken even to take possession of temporarily, and remove for inspection the records and documents kept in such undertakings. There is a new paragraph providing for the taking of samples of articles found on the premises of persons carrying on any undertaking. There is a new paragraph providing for the display of lists of prices of articles. That power exists at present under the Control of Prices Act, but it is considered more desirable to have the power under the Emergency Powers Act, as the procedure is simpler and the penalties are more severe than in the Control of Prices Act. There is another provision of the same kind relating to the giving of receipts. Again, there is power under the Control of Prices Act to require that receipts be given by traders to customers. It is considered preferable to have that power under the Emergency Powers Act rather than under the Control of Prices Act. These changes are, in the main, verbal changes. We could have done without them but, as the Article had to be amended in any event, with the distribution of ration books, it was considered, in the light of the experience of the last three years, that these changes in the verbiage of the Article were required.

There is also power to give directions, which can be given in any event under the Article of the original Order, orally as well as in writing. I will explain the circumstances in which such power would be used. If an inspector from the Department of Supplies in West Donegal reports a shortage of flour in a particular parish there, the obvious course for the Controller of Flour to take is to get on the telephone and to order that a ton of flour be sent for the relief of that parish. That means giving the direction orally. If we were to adhere to the terms of the Article of the 1939 Order, that direction could be given only by signed and sealed documents. Alternatively, the trader would not be bound by the direction. The same circumstance might arise in relation to any other commodity or any industry.

By various Orders made under the Emergency Powers Order, 1939, persons engaged in different industries and trades are operating now under licence —a licence which requires them to comply with any direction that may be given to them by the Minister for Supplies. Woollen manufacturers are required by such directions to produce cloth for military purposes in preference to cloth for civilian purposes, to a prescribed percentage of the total available quantity of yarns. Persons engaged in various clothing industries have been directed to concentrate on the provision of utility cloths as distinct from fancy or luxury products. In various industries that system of directing the manner in which available supplies of raw materials are to be utilised is in operation and, while it is true that, under the Article of the 1939 Order as originally framed, these directions could be given only in writing, in practice, the appropriate official of the Department of Supplies told the industrialist or trader concerned to proceed in the prescribed manner and said that the Order would come along in due course. In practice the industrialist or the trader acted upon the directions given to him orally.

It is desirable that it should be made clear that in these cases where industries are carried on subject to orders which give the Minister for Supplies power to direct the manner in which available materials are to be utilised, the Minister should have power to give oral directions and get these directions acted upon promptly without any option to the trader or manufacturer concerned to disobey the direction. Again that particular alteration in the terminology of the Order was made merely because the Order had to be amended in any event. The existing system had not worked badly; the individual was told what he had to do, and if he would not do it we made an Order which compelled him to do it. In practice he did what he was told except in a very small number of cases.

The other changes, as I have said, are merely verbal changes. They are designed to deal with the possibility of the powers of the Minister to ration commodities or to control production and distribution of commodities being questioned in the courts. In respect of some of the rationing schemes in force, or some of the Orders which have been made relating to production of commodities, it is possible that the Orders could have been questioned in the courts before the amending Order was made, because of the inadequacy of the terminology used in the 1939 Order. The only other powers taken are those which confer upon the Minister concerned authority to get certain records and if necessary to get certain extracts from these records. These are powers which are obviously necessary in certain circumstances, where a large number of commodities are in short supply and where their use and distribution have been controlled by the Government in the public interest. The other changes make no additions to the Minister's powers at all. They merely transfer from one Act to another a power which he already possesses. I refer to the paragraph relating to the display of price lists, the giving of receipts, etc. The Minister for Supplies has these powers under the Control of Prices Act, but he prefers to have them under the Emergency Powers Act because the procedure is simpler under the Emergency Powers Act and also because the penalties for non-compliance are greater under that Act than those which were considered adequate in the more normal period when the Control of Prices Act was passed.

I think Senator Keane has put down this motion to annul the Order under a misapprehension. We are not in any way detracting from the powers of the Oireachtas to annul any Order made by the Government. An Order made by the Government can give to an individual Minister power to issue Orders to direct particular activities for a definite aim, and these Orders, which can be given orally as well as in writing under Article 31 of the 1939 Order as amended, would not in any event come before the Oireachtas or be capable of being annulled by a resolution. The main changes made in the Order are, first of all, those required in the wording of the Article to make it sufficiently broad to cover a comprehensive rationing scheme such as that to be introduced under the rationing book system. The second change is that which enables more detailed information to be secured as to stocks held by manufacturers and traders.

It appears, at least I was advised by the legal adviser to the Government, that under the Order as it stood such a simple matter as obtaining returns of the stocks of flour held by a flour merchant or the stocks of fuel held by a fuel merchant could not be required, unless the particular trade or commodity concerned had already been the subject of an Order made by the Government or the Minister concerned, relating to an entirely different matter. That, in fact, was only defective drafting, quite understandable having regard to the circumstances under which the Order was made. In addition to the power already possessed requiring the keeping of records, power is now being taken to secure extracts from such records as well as power to remove and detain temporarily such documents.

The final amendment relates to the giving of directions orally as well as in writing. I have explained the circumstances under which that power is acquired and is at present being used, I think it would be preposterous to require that an Order given by the Flour Controller to a flour merchant in Sligo to supply a ton of flour to a trader in Donegal should have to be tabled in the Oireachtas and should be capable of being annulled by a resolution of the Oireachtas. There is no revolutionary change such as Senator Keane suggested had been made by the Order. In fact, the additional power acquired by the Minister is very slight indeed.

The McGillycuddy

Although, in general, I am quite prepared to agree with the Minister's interpretation of the amendment, I should like to have two points cleared up. I am not quite clear as to why the amendment has omitted the preamble of the 1939 Order. The second point is that this question of oral instructions is something new in Parliamentary drafting and in the machinery of administrative procedure in Government offices.

I visualise what might happen in an extreme case. Under this Order, the Minister is allowed to employ agents to carry out his wishes. On one particular day he may give 20 different orders to 20 different agents. There is no provision in the amendment for the keeping of any record whereas we, ordinary people, who have to pay income-tax to the Government and taxes or rates to the local authorities, have to keep records of everything. I do feel that the Minister should examine that question. The various people to whom the Minister has to give instructions— they may be big instructions or small instructions — will vary in intelligence, for one thing, and consequently in their interpretation of what the Minister wishes to convey. In fact reading all these Orders people even of the experience and standing of Senator Sir John Keane are not quite sure of what the Minister intended. I think that question of oral direction without records is something that requires consideration.

Mr. Lemass

If I might intervene, the power to delegate to agents the right to give oral instructions is obviously necessary if inspectors of the Department are to carry out their functions properly. Perhaps I may give one of the most recent instances. I received a complaint that a baker's shop at Marino never had enough bread on a Saturday to supply its registered customers, and I sent out an agent to see for himself. He found so many registered customers queueing up for bread that he decided that the existence of the queue was good ground for believing that there was something in the complaint. After a number of hours, the bread supply of the shop was exhausted, with 40 customers left unserved, and the manager of the shop was about to close for the day leaving these 40 customers without bread. At that point, an officer of the Department went in and directed the manager to telephone the bakers for a supply of bread to provide the ration for these additional 40 customers. That order was obeyed by the manager and the bread was provided.

Question put and declared lost, Senator Sir John Keane dissenting.

Business suspended at 6.25 p.m. and resumed at 7.15 p.m.

Seanad Éireann díospóireacht - Tuesday, 2 Jun 1942

Emergency Powers (No. 173) Order, 1942—Motion to Annul.

Seanad Éireann díospóireacht -
Tuesday, 2 Jun 1942