Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Wednesday, 23 Feb 1944

Vol. 28 No. 11

Emergency Powers (Amendment) Bill, 1944—First Stage.

I ask leave to introduce a Bill entitled an Act to amend the Emergency Powers Act, 1939.


Is the motion for leave to introduce being opposed?


Senator Kingsmill Moore may make an explanatory statement.

I am surprised, flattered and honoured to see that on this one-section Bill the House has the privilege of the attendance of the Taoiseach, an attendance which I understand to be unprecedented in the annals of this or the previous Seanad on the First Reading of any Bill introduced by a private member. I understand, indeed, that on no occasion has any Minister ever attended at the First Reading of such a Bill except in one case where the Bill being introduced had already been rejected by the Dáil and could not be regarded as a bona fide measure.

If I were to trust to my own limited experience of and attitude towards human nature, I should hope that the attendance of the Taoiseach was to welcome this Bill; to say that he was about to adopt it, and introduce it as a Government measure on the ground that it was absolutely necessary to complete the round of our constitutional system, and that no argument could be found worthy of being put up against it. But those who are more experienced, more cynical, perhaps, and more wise than myself, anticipate that the Taoiseach, while being a bird of passage here, is usually that particular bird, the stormy petrel, which is known as the harbinger of squalls to come. Therefore, I am forced very unwillingly to adopt the alternative explanation that this honour and this constitutional precedent of which I am the very unwilling instrument is due to the fact that the Bill is being opposed on the First Reading. Why? Because it is unanswerable and it is necessary to prevent——


The Senator is entitled only to make an explanatory statement on the Bill at this stage, not a Second Reading speech.

I am very much obliged and I am about to go on to the explanatory statement. By way of introducing the explanatory statement, I was about to say that it would, perhaps, be shorter to start by saying what this Bill does not do because from odd wafts of conversation which have come to my ears in the ante-room I have gathered that there are certain rather erroneous ideas of the object and effect of this Bill.

Let me say, first of all, that this Bill, if granted a First Reading and if it eventually passes both this House and the Dáil, will not prevent the Government from making one single Order which they have power now by law to make. It will not make illegal one single act which has been done or may be done under any Order lawfully passed by the Government and it does not purport and does not, in fact, call into question in any respect the advisability of government by Order, a matter which I would be the first to realise is of too wide an aspect to be a fit subject for discussion on a Bill introduced by a private member. What this one-section Bill seeks to do is to stop a chink in the fabric of the Emergency Order legislation, a chink which may have been unintentional, which I am inclined to think was quite unintentional, but which the passage of time and the ravages of political storms have enlarged so as to endanger in some respects the safety of the structure.

Senators are aware that on the day on which the present world war broke out the Government introduced the Emergency Powers Act to meet the very peculiar circumstances which were expected to arise and which, naturally, called for swifter action and more extensive powers than might be considered desirable in normal times of peace. That Act gave to the Government powers of the most elaborate and extensive nature which it is unnecessary for me to refer to in any detail but which I may summarise in the power which is contained in subclause P, Section 2, sub-section (2), enabling the Government to suspend, amend or alter every line of the statute law of the land. To the Government was given power, by an Order made by the Government, to abrogate the whole of the Statute Book, by way of suspension, or to amend it. Since a power so extensive as that was given, it is unnecessary for me to refer to the minor and less sweeping powers. I am not on this occasion cavilling at the necessity. It was impossible to foresee the perils which lay ahead of this country but I call your attention to this fact—that the Legislature, in passing that Act, took care, while giving to the Government the most unlimited power of doing what they wanted as swiftly as they wanted, to provide that the ultimate control over the exercise of that power should rest with the Oireachtas.

In order to prevent any legal questions arising as to whether the Government had acted wisely or had gone outside their powers in any Order made by them, the Legislature provided that, even though it might call in question the powers, anything already done under those powers should be unimpeachable. That was done by providing that any Order made by the Government must be laid upon the Table of each House and, within 21 sitting days after it had been so deposited, should be subject to question, discussion and annulment by either House, but without prejudice to any act which had already been done by virtue of such Order. In other words, the Government and the Oireachtas recognised the principle that, although emergency powers should be given to the Government, discussion of those powers and of the manner of their exercise should be preserved to the Legislature—that, in the ultimate analysis, the Legislature must have the power of expressing its dissatisfaction and, if necessary, annulling the Order.

In the Act there was one other provision to which I desire to refer. Again, it was a provision of practical utility to which, on its face, no great objection could be taken. It was provided that the Government, instead of making emergency Orders themselves, might delegate to any person—a Minister, or the head of a Department or anyone else — the power of making an Order on any indicated subject. Obviously, if you are to interpret that section, as introduced by the Government and as passed by the Oireachtas, it was intended to deal with the ordinary, departmental, administrative, ministerial and trivial matters, Orders in respect of which might very well be made, not necessarily by a Minister or the head of a Department but even by a junior clerk. It is perfectly clear that that was the object of the section to which I am referring. Because it was intended to apply only to those common forms, no provision was inserted whereby Orders made under that delegated power could, or should, be tabled before the Houses or could, or should, be open to discussion and, if necessary, to annulment by the Houses. Interpreted in that manner, which anybody who takes the trouble to read the Act will, I am convinced, consider the correct manner, no fault could be found with the powers given to the Government, having regard to the uncharted sea which they were about to traverse. But that power, wittingly or unwittingly, has been used in a way which was not contemplated by the Oireachtas. It has been used in a way which is, undoubtedly, convenient to the Government and it has been used, I am sure, perfectly bona fide. The Government cannot always be sitting in order to make emergency Orders and so the Government has thought fit to delegate to Ministers and to other persons that power to make an Order under the provisions of the section to which I have referred.

In one case, at all events, an Order made in that manner has had the effect of wiping an Act off the Statute Book. Can any Senator here truthfully say that it is a desirable thing that an Order wiping off the Statute Book a statute made by the Oireachtas could not be brought before the House and subjected to discussion and, if necessary, annulment? Is any Senator here willing, as a matter of principle, to subscribe to the theory that the Government may make statutes which cannot be discussed or amended by the Oireachtas, because that is what it comes to?

The Bill to which I now ask you to grant a First Reading is one which aims in a very modified way to ensure that sooner or later this House and the Dáil will be able to examine and, if necessary, express their disapproval of Orders of a sweeping nature such as I have indicated. It will be within the memory of every Senator that, on the last occasion when this House met, the Minister for Industry and Commerce, sitting where the Taoiseach now sits, admitted that he could think of no argument, good or bad, to justify a provision in an Act whereby a Minister even for the purpose of bringing a Bill into force and implementing provisions the working of which it would be difficult to anticipate might make Orders of such an unquestionable nature. By the admission of the Minister, no good reason could be put forward on behalf of the Government why even such Orders should not be tabled before this House, discussed and, if necessary, annulled. It is not necessary for me to do more than refer to that admission. It was made in the most unqualified manner and I rest my case upon it. Senators will remember the humorous way in which the Minister said that the only thing that was worrying him was that, whereas he could not offer any good reason for acting in the manner I have indicated, the Minister for Local Government must have thought of one because a similar clause appeared in another Act sponsored by that Minister.

Now the way is clear for me to tell Senators what, shortly, the effect of what I call this one-section Bill is. It is a one-section Bill because the first section covers only the definitions and the last is concerned with the short title and the construction. I may say that if you grant a First Reading it will be probably necessary to make some drafting amendments in order to bring the Bill into line with the '42 Emergency Act. The operative section provides that—I summarise it—where the Minister or any other person makes an Order by virtue of a power which has been delegated to him by the Government, that Order, if seven members of either House so require it, shall be revealed officially to each House by being put on the Table. When it is put on the Table it is open to discussion by the House, and if the House should think fit it can annul the Order without prejudicing anything that has been done under it previously. Observe the safeguards. First of all, this is not to apply automatically to all Orders made by the Government. Ministers or anybody else acting under this delegated power can go on turning out Orders as rapidly as sausage machines without being in the slightest affected by this Bill. In so far as these Orders are administrative Orders, or are Orders dealing with matters of no great importance, you can, I think, safely assume that no seven Senators are going to waste their time requiring that they should be tabled before the House.

The requisition, to be effective, must be in writing and it must specify the exact Order to which objection is taken, that is to say, it is not a matter of seven Senators sending in a requisition to a Minister saying: "Will you kindly table all your Orders?" They must specify the particular Order which, in their opinion, is of such importance—either by reason of the fact that it repeals or alters the provisions of an Act or because of other aspects of the Order—that it should be tabled. They must specify the particular Order and only when such requisition, signed by seven members of either House, is presented, requiring such Order to be tabled, is it put on the Table of the House. The putting of it on the Table of the House has no effect except that it is open to discussion and it will not be made in any way less efficient, unless one House or other passes a majority vote annulling it, though of course opportunity will be given for discussion. Even if one House or the other sees fit after discussion by a vote to declare that the Order is to be annulled, that will not affect anything which has been done; it will not make illegal anything which is legal and it will involve the Minister in risk of actions which might embarrass him. In a word, all this Bill does is to let the Legislature of this country know what is being done by way of altering the law, to give either House an opportunity of discussing it and, if necessary, to express their disapproval of it.

What is involved in your refusal to give this Bill a First Reading? I suggest that every Senator, whatever Party he may nominally give his adherence to, should ask himself this question: "What is involved in my giving a vote against the First Reading of this Bill?" You are voting for this principle, that the Government by means of a power, delegated to a Minister or an underling, shall be at liberty to re-write the statutes and the laws of this State, and that there shall be no method whereby the Legislature can effectively express their disapproval and prevent such a procedure. That is what you are voting for, in voting against the First Reading. You are not only voting for that but you are voting that the question as to whether it is desirable that the Government should be entitled to re-write the Statute Book, is one so much beyond doubt that the House should not even allow discussion upon it, when it is involved in a Bill, drafted, although I say it myself, by a responsible member of this House, not altogether uninterested in the political constitution of this State. If you can answer that question to your own satisfaction, vote against it, but do not be misled on one point which I should have mentioned when I was explaining the Act. The enabling Order which can delegate such power to a Minister or boot-black is in itself tabled and, in theory, can be discussed, but such Orders give powers, to whomsoever they are entrusted, which can be exercised at any time. In the last case that came before this House a power was given and was not exercised for 14 months afterwards. It is quite obvious that nobody is going to waste the time of Senators by discussing the possibility or non-possibility of the exercise of a power which has not been put into force and may never be put into force and, if it is put into force, is so done 14 months later. What would be said of any Senator who asked this House either to approve or disapprove of the delegation of a power which might be exercised years ahead, the necessity for which and the circumstances surrounding the exercise of which he could not foresee? But, when the circumstances have arisen, when it would be time for the House to consider whether those circumstances justified the action, then Senators are handcuffed if not gagged, allowed only to indulge in a certain amount of eloquence if the matter happens to arise in a discussion on the Estimate. But they are powerless to make felt their will or to give wider publicity to their opinion. I ask the House to grant this measure a First Reading.


I desire to remind the House that it is now 9 o'clock, the usual hour for adjournment.

We can go on.

I suggest that, in view of the fact that the measure is contentious and in view of the difficulties of transport, we should not take a decision on this motion late to-night.

We cannot have a vote after 9 p.m. You must have a division now or not at all.


The House can continue to sit later by agreement.

If there is a considered opinion that we should adjourn now owing to transport difficulties, we can meet to-morrow.

I may have questions to answer in the Dáil to-morrow so that it might be difficult for me to come up immediately the Seanad sits.

We could adjourn the matter until the next day the Seanad meets.

I am at the Taoiseach's convenience.

I suggest we can take up other business when we meet at 3 o'clock and if that business is concluded, if necessary, adjourn until 4 or 4.15, that is, until after questions in the Dáil.

I am anxious to do my duty in both Houses.

Further consideration of the First Stage adjourned until to-morrow.

The Seanad adjourned at 9.5 p.m. until 3 p.m. on Thursday, February 24th.