Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Thursday, 24 Feb 1944

Vol. 28 No. 12

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

Question again proposed: "That leave be granted to introduce the Bill."

I take it that the presence of the Taoiseach indicates that he desires to speak on this motion. What other statements will be allowed?

Explanatory statements only are allowed on this stage from either side. The discussion must not develop into a Second Stage debate.

I appreciate that, Sir.

I rise to oppose the Bill and I do so in the belief that, if it were implemented and were to become the law, it would cut across the whole policy of dealing with a situation of emergency. A suggestion something along these lines was, as far as I can remember, made in 1942 by Senator Michael Hayes. For some reason or another, or as a result of an explanatory statement given at that particular period, it was generally agreed that such restrictions, if I might call them restrictions, were not necessary. Perhaps it is because most people think that the position was more serious at that time than it is at the present time that we now find this Bill coming along. Far be it from me to decide whether or not the present situation is more serious than the situation which existed at that particular time, but if we are to deal with the situation as it exists, we must take it for granted that until the last shot is fired, the continuance of emergency regulations is justified just as we were all agreeable to accept that position in 1942 or 1939. There are numerous reasons why, in my opinion, a Bill such as this is not desirable at the present time. First of all there is, of course, the very obvious difficulty that it would throw an enormous amount of work on the staff of the Civil Service.

On a point of order, as I understand the Senator, he is arguing the merits of a measure that was simply outlined by Senator Kingsmill Moore. I understand that the debate is addressed to the question of whether there should be a First Reading given to this measure, so that we might on Second Reading debate the merits of the Bill.

The statement made by the Senator so far is an explanation of why he is opposing the Bill. He is not debating the merits of the measure.

On a point of order and on a point of fact, may I point out that the Senator is not debating the Bill before the House? He is debating a Bill which is completely different in its provisions, inasmuch as he says that extra work will be cast on the Civil Service as a result of the passing of this measure.

I am very sorry if I have displeased Senators, but it is most unusual to try to prevent anybody from giving his reasons for adopting a certain line of action.

That is what the Senator is doing. He is trying to prevent a Second Stage.

I am hoping there will be no Second Stage.

The Senator is explaining why he is opposing the motion to grant leave to introduce the Bill. He is not, in my opinion, discussing the Bill or the merits of the Bill.

The reasons which he has given are not reasons against this Bill but against another Bill which somebody else may introduce at another time.

The statement, so far made by the Senator, is one which might well be made on Second Reading.

Senator Kingsmill Moore has explained the purpose of the Bill and Senator Quirke is now giving his reasons for opposing the introduction of this Bill.

I explained my Bill but the Bill which I explained is not the Bill which is being answered now.

In my opinion leave should not be given to introduce this Bill for the simple reason that it would make the work of Government Departments completely impossible. It is, as far as I can understand, proposed to make certain regulations whereby Orders dealing with instruments issued by various Departments must be laid on the Table of the House. Does the Senator realise the number of such instruments issued? For instance, in connection with licences for the purchase of coal, I understand that there are something like 50,000 documents. In connection with various other commercial products there are hundreds and thousands of these documents issued every day, but the principal reason to my mind why such legislation is not desirable is the difficulty that would arise in connection with confidential documents dealing with the confidential business of various firms, documents disclosing the financial positions of individuals and firms. That, in my opinion, would be very undesirable. In the same way in connection with the Department of External Affairs it is at times necessary to make Orders for internment. Suppose some people crash in this country in a plane; it may be necessary to make an Order to intern them. It would not be desirable that such an Order should be placed on the Table of the House. In the same way in connection with Orders made regarding ships, the property of belligerent nations, it is desirable that such information should not be disclosed. In fact, when questions of a general nature are being dealt with, not alone are the documents laid on the Tables of the two Houses, but the matter is announced over the radio. I think Senator Kingsmill Moore says "No". I hold it is, and has been on numerous occasions. Practically every week an announcement is made by some Minister over the radio dealing with matters of this particular kind. For instance, in the Department of Agriculture, that is done when it is necessary to make Orders in connection with the taking over of land for allotments. Of course, I know it is suggested that if and when an Order is annulled, the annulment would not affect anything which had been done previously. It would, however, create an atmosphere of uncertainty in the country which would be detrimental to the tillage policy which we are all agreed by this time is really the life-stream of the nation, and without which we could not carry on. If such restrictions were imposed on Ministers and the Government, there would be an atmosphere of uncertainty and you would have boards of health passing resolutions——

There are no boards of health in existence now.

You would have county councils and county committees of agriculture passing such resolutions. As soon as Senator Baxter gets on his feet, we shall hear all about it.

He will not be allowed to get on his feet if you succeed in your opposition. You are keeping him from getting on his feet.

Thank God, it can be done for once.

I might be supporting you on Second Reading if you gave me the chance.

I think there is no reason whatever why this Bill should be introduced. I believe the House, having thought over the matter seriously, will agree with me that there is no necessity for the measure and will refuse permission to introduce it.

On a point of explanation, the Bill does not attempt to deal with all Orders made by the Government. It only requires that if seven members of either House name a particular Order, which they desire to have tabled, it shall be tabled. It is not of general application. It applies only to an Order named by seven members of the House, and I think I indicated that if the Bill were given a Second Reading I would introduce an amendment confining it to Orders altering statute law.

When Senator Kingsmill Moore was speaking about this Bill, he was very careful in what he said. He pointed out that if seven members of either House by written requisition demand that an Order should be tabled——

May I inquire if the Senator has a copy of the Bill and, if so, how he got it?

I got it in the same way as every other Senator can get it, if he is in difficulties. If the Senator will read Senator Kingsmill Moore's speech he will get all the information I have and he will be almost as wise as I am.

Is the Senator quoting from a copy of the proposed Bill?

From a copy of the speech made by Senator Kingsmill Moore.

He is not quoting from the proposed Bill? I could not allow that, of course.

Perhaps we could be told how Senator Quirke has already obtained the report of yesterday's proceedings?

When the Senator is a little longer in this House, he will find a way of getting these things. Senator Kingsmill Moore by way of support of his own arguments asked was it suggested that any seven members would be so foolish as to waste their time in putting their names to a document of this kind, if the Order was one of no great importance. I think we can say that we have at least seven such members in this House and they are all on the other side. I could very easily visualise a situation where seven Senators could be got to put their names to practically any sort of foolish document that would serve their ends. I saw one of these Senators getting a dressing down in the papers yesterday and I hope it did him good. If such actions could embarrass the Government here, it would not cost these people a snap of their fingers to put their names to any document to insist on certain things being done, even if they knew that these things were going to be detrimental to this country. I believe that such power should not be given by this House.

I do not think that the allegation should be allowed to pass unchallenged, that there are seven members in this House who are prepared to sabotage the country.

I did not count Senator Foran amongst them. I say that there are seven foolish people in this House and they are all on the other side.

Could we hear the Taoiseach so that we may see if there is any real point in this debate?

The reason that I believe it would not be wise to proceed further with the discussion on this Bill is that the same principle was introduced by way of an amendment in this House before, and it was discussed. We then arrived at the point at which I indicated that I should like an opportunity of ascertaining whether something could be done to achieve the object which was then aimed at. I said that I would have the matter examined. I did have it examined. I got all the Departments to give me a report on the position, as they saw it, and all the reports were unanimous in the view that it was impracticable, that in fact no procedure could be devised that would enable the House to have the same control, or a corresponding control, over these instruments of various kinds as you have over Emergency Orders made by the Government, which must be presented to both Houses and may be annulled by resolution.

It was on the ground of the impracticability of the proposal that I came to the House to suggest that the Seanad should not consider it further and that the Bill should be opposed at this stage. In having this examination of the position made, I tried to separate what might be called major matters from minor matters and to deal with those Orders, in the first instance, under which there is power to amend existing legislation. I felt that was a very serious power to have and I suggested that we should try to separate those so that special procedure might be adopted in their regard. The result of my examination has been such as to show me that in general we are doing that because, from the information supplied to me, it appeared that all these instruments which would enable a Minister under delegated powers to amend existing legislation, have to be covered specifically by Government Order. The parent Order under which the thing is done covers all these matters where there is a question of amending legislation. I am not able to say that absolutely but, so far as I could discover from the information supplied to me that was the position.

If that is so, then the main objection to the existing position disappears. I do not say that all objections are removed because from the democratic point of view there must always be some objection to extended powers of this nature given to a Minister or a Government. The only ground that can be urged for giving such powers is the absolute necessity arising out of the emergency, that you cannot devise any means that will give the necessary power to enable things to be done quickly, where swift action is necessary, otherwise than by giving almost complete discretion to a Minister.

The Order, of course, may be questioned in the sense that it may become the subject of a motion of disapproval. That, I will admit, is not equivalent to a motion of annulment, but I am sure that if there was any instrument on which there was a majority vote of disapproval, it could not have other than a very serious effect on the Minister and the Government. If there was a motion of disapproval carried in regard to any particular instrument or Order, I doubt if such instrument or Order could be continued in existence. I think if it took place in the Dáil it would have to to be regarded very seriously and the Minister would have to withdraw the Order because the vote would be tantamount to a vote of censure.

The procedure of a vote of censure, if the matter is sufficiently grave, could also be resorted to. I want to say—I do not know if there are any exceptions—that I understand that the rule has been that wherever power is delegated under an instrument in which there was a question of altering or amending legislation, that had to be covered by the parent Order and the Order explicitly set out the sections of the Act which the Minister was given power to change. That happened in the case of the humane killer. Power was given to the Minister, referring to certain sections, to enable the Minister to do certain things.

The Government Order giving that power could have been questioned. For instance, somebody could have come along and objected to the Order on the ground that it gives power to do away with the humane killer. I do not want to go into the merits of this case, because I understand it would not really be relevant. I do not want to follow Senator Kingsmill Moore in that. The Senator was in the difficulty that he had to make us acquainted with what was in the Bill, and the only way he could do that was in a statement which approximated to a Second Reading speech. I am not under the same necessity and so I will not follow him on that line. But I suggest to the Seanad that the major thing has been covered.

I have been personally impressed by the view which has been expressed previously in the Seanad on this question, and I have sincerely and earnestly tried to get some accommodation so that we would be able to deal with it. I think the major difficulty that I have had is covered by what I have said in regard to the parent Orders. I quite agree that, in theory, the Bill could be amended in such a way that the word "instrument" could be brought to a much narrower scope. The British had a somewhat similar difficulty and they discussed the question of setting up some sort of standing committee of all parties to deal with it, but they failed to do it because it meant that there would have to be examination into the merits of each case. For that examination they would have to hold meetings with representatives of various Departments and they would have to consider a case in the same detail that the Ministers and the Departments had to consider it. There would be duplication and if there was conflict of opinion, that would be a further complication.

I think that in this we are trying to do something which is impossible and, on that account, I recommend the Seanad not to spend further time on it, if the Seanad agrees with me that it is trying to do something that is impossible. Then there is the question of confidential documents. Senator Quirke referred to that. There are confidential documents, instruments of a confidential character which in one case it would not be in the public interest, and in the other case it would not be fair to private individuals, to divulge. It could happen that if instruments of various kinds were questioned we would be in the difficulty that in one case the public interest might be endangered and in the other case private rights might be endangered. I see difficulty in trying to segregate them into classes in order to avoid that danger. In the case of the public interest I need only refer to Orders and instruments under the Department of Defence, the Department of Justice and the Department of External Affairs. These are the ones in which the public interest would be affected. In the case of private interest there are things put on record in regard to private traders, whether in the Department of Agriculture or the Department of Supplies. Many things are divulged by private firms to Departments in that way, so that in one case private interests are concerned and in the other the public interest. Whilst we could have a very long debate on this whole question of legislation by Order, and it would be valuable from the point of view of examining present-day trends and the danger of them, in this particular case I do not think we could arrive ultimately at any other conclusion by which we can meet both needs, that is, the needs of the emergency and our natural desire to see that representative institutions retain their full power, even during the emergency.

May I ask whether if I am to accept an amendment that it shall only apply to delegated Orders which relate to existing legislation, and make it inoperative and if subject to the veto of a Minister, if he thinks that it is not in the public interest, that the Order should be discussed, where confidential matters are concerned. I suggest that these are matters which could be considered on the Committee Stage by way of amendment. Might I suggest that possibly these objections could be met on Committee Stage?

I think that the matter as far as I know has been met already in the most effective way, that is by means of the parent Orders in one case. The other one does not get us anywhere because you are leaving the Minister supreme.

On a point of order. The Standing Order is perfectly clear. The only right is a right of an explanatory statement by the mover and a reply by the opposer. On one occasion a precedent was made when we heard a Minister and I think we are following that precedent now. But we have heard the Taoiseach and are we now going to have a full debate?

This is an extract from the Order:—

"If such a motion be opposed, the Cathaoirleach, after permitting an explanatory statement from the Senator who moves and a statement from a Senator who opposes the motion may, if he thinks fit, put the question thereon."

I propose to hear statements from Senator Hayes and Senator Foran if they desire to intervene.

I intend to be brief. My interest in this matter is not at all concerned with the merits of the Bill. I would like to ask the House, apart altogether from the merits of this particular measure, to give consideration to this question. I was asked to put my name to it. I read it and did not put my name to it, and I am not at all sure after hearing the speeches, that I would support it on the Second Reading. But I would like to adhere to what I say. In 1930, on the First Reading of a Labourers Cottage Bill I expressed myself as being in favour always of allowing the First Reading of a measure and giving the right to print the Bill.

If any responsible members of the House go to the trouble of drafting a Bill I think, except in very special circumstances, the House ought to accept the Bill for First Reading without regard to what it may do on the Second Stage, and ought to make an Order to have the Bill printed. I should like very much that that should be established as a principle, but I suggest that what has happened here to-day is that we have discussed the merits of the Bill, and the majority is being asked to reject it on its merits. I think that is very objectionable. This House is given certain powers under the Constitution and it is also quite clear that there are certain powers which it has not got. A colleague of mine put down a Bill which was deemed by the Cathaoirleach to be a Bill which would increase the charge on public funds. That went before the Committee on Procedure and Privileges and it was agreed that it could not be introduced. It is quite clear, however, that the Constitution gave this House absolute power to initiate legislation. That is a very valuable power which we can exercise and which we should not lightly give away.

I think that all members of the House apart from what they may do on the Second Stage of the Bill should give consideration to a motion such as this even though they may not be in favour of the Bill. Of course, there may be unsuitable measures, and there may be some special reason for rejecting a Bill, without having allowed the members of the House to see it, but these I submit will be unusual cases.

When three well-known members of the House submit a Bill to us I think we should, in this particular case, give power to print it so that we may see it. Then, on the Second Stage, we could give our views on it. The speech of the Taoiseach and his reply to the question of Senator Kingsmill Moore illustrate what might actually happen on the Second Stage. As a matter of fact, I might be rather more in favour of any Minister in these matters than of Senator Kingsmill Moore. The Senator is looking at this matter largely from the point of view of the importance, as the Taoiseach said, of not allowing delegated, legislation to run riot. I am rather agreed on that theory, but in the light of my own experience, and that of other people upon matters of this sort, I am inclined to see the matter from the point of view of the Minister, who wants to get a job done and does not want to be all the time hampered by Parliamentary interference, although in theory he is subject to Parliament.

From the point of view of legislation in this House I think this Government should use the Seanad more in the way of introducing legislation. I expressed that view to another Government. There are many types of Bills that could be brought in here and that could then be brought to the Dáil. That would prevent our Parliamentary business being as lopsided as it is under the present system, where every Bill is brought into the Dáil. There are certain types of Bills that might be brought in here, as they could get fuller consideration here. Even if we take it from the point of view of the time available, we find that the other House is engaged in business of a financial nature, such as Estimates, etc., while we have nothing to do with Estimates. I expressed that opinion many years ago to a former Government, and I do so now to the Taoiseach.

The Taoiseach, if I may follow him into the merits of the Bill, is not correct in saying that this matter was before the House already in the form of an amendment to an Emergency Powers Bill. This particular Bill—and I may say that I have seen it—proposes another scheme which may not perhaps be a very sound one and, having heard the Minister on the Second Stage, we might reject it. It is not correct to say that this Bill takes the form of an amendment already proposed. It was never before the House in this form. This Bill is a genuine attempt to find a way out, either by compelling Ministers and the Government to table every Order or having the position where Deputies and Senators see no Order at all. It states, for example, that seven Senators or seven Deputies may ask for a particular Order. I would, on the Committee Stage—if the Bill was being discussed—propose to exclude the Department of Defence and one might even make the number greater than seven. I do not share Senator Quirke's low opinion of this House.

That is only a one-sided opinion.

Yes, that is only one side, but I do not think Senator Quirke is in earnest about that. I do not think it would be easy to get seven Senators or seven Deputies to put their names light-heartedly to a document that would effect only ill. I have sufficient confidence in the members to say you would not get that easily.

It is getting more difficult every day. I will admit that.

That remark is beyond me. It is not the first time Senator Quirke's English has baffled me. I urge on Senators that from the point of view of our standing and the privileges of the House, we should never, unless there are very grave and special reasons for it, reject a motion for leave to print a Bill. Under our Standing Orders, a Bill cannot be introduced unless at least three Senators put their names to it. That, in general, may solve the problem which the Taoiseach admits has baffled him and which has baffled more than him. It has baffled a good many of us.

The least we may do is to discuss this Bill on Second Reading. I am very strong on this point, that we should use our powers to initiate legislation by giving permission to print this Bill. I remember in 1938 I rather objected to the power as a whole, and I asked whether it was going to be a normal procedure that a Minister would appear on the First Stage of a Bill like this. When you are certain there will be a majority against this Bill, I suggest that the majority should not be used, at this stage. I suggest to the Taoiseach and to Senator Quirke that they should not use their majority against the First Stage of the Bill. They should allow the Bill to be printed and, on the Second Stage, having had in greater detail and more lucidly and calmly the kind of speech we have had to-day, then they can if they like defeat the Bill. The majority should be used not on the First Stage but on the Second Stage. For these reasons, which do not in the main concern the merits of the Bill, I consider that we should give it a First Reading, let it be printed and circulated and subsequently discussed and, if necessary, amended. If we do that, we will be bringing credit and honour to this House. We might adopt that procedure instead of this short-sighted procedure of saying "this is something we will not even look at".

I am rather surprised and disappointed at the attitude of the Taoiseach in this matter. He frankly confesses that he believes in the importance of trying to have some way of checking up on Emergency Powers Orders, yet he is giving this House no opportunity of putting forth their ideas as to how the position may be met. On every occasion when these emergency Orders were before this House I opposed them strenuously. I am fundamentally and absolutely opposed to legislation by Order. As the Taoiseach has said, nothing could possibly justify emergency powers other than a crisis. When these emergency Powers were being adopted, a crisis seemed imminent. We were all very upset and perturbed about the position facing the country, but even with that position, we were hesitant to hand over the powers of Parliament to a Minister. The situation has undoubtedly improved somewhat, and during the period in which these emergency powers have been in operation I am not going to condemn the Government for using them unduly or severely. But the principle of democratic control is lost through these Emergency Powers Orders, and at the very earliest opportunity we should get rid of them and go back to proper and reasonable democratic control.

I put my name to this Bill in the hope that there might be a connecting link between that side of the House, where all the brains are, and over here, where they are mediocre, according to Senator Quirke, and so that we might, by our combined efforts, bring forth some measure that would restore democratic control in this country. In this Bill we are not making any effort to impede or hinder the Government in carrying on their duties during this emergency period, but rather are we inclined to help them, while at the same time preserving the right to criticise in a democratic manner any Order that may be made by a Minister or by the Government.

Now, surely, it is reasonable to suppose that that amount of control should be restored to the Oireachtas, and that is what is proposed in this Bill. I am not going to go over the various Orders, but I could mention a number of them that weighed very heavily on certain sections of the community. This, however, is not the time to raise that matter, but I would again appeal to the Taoiseach to allow this Bill to get a Second Reading, let it be printed, and then even I might find that I could not vote for supporting the Bill, but I have sufficient confidence in the united wisdom of this House to believe that we would bring forth a measure that would give general satisfaction.

I must say, that when I put my name to this Bill I had no intention whatever of unduly hampering the Government in their functions and I would certainly say, on behalf of those who signed the Bill along with me, that we had no such intentions. Our sole ambition was to restore to the Oireachtas the right to criticise these Orders, and certainly there were certain Orders issued by the Department of Defence, and other Orders, that could be eliminated. I am inclined to disagree, however, with Senator Kingsmill Moore when he says that the Minister should have the right to refuse discussion in the House. That, however, is a matter for the Second Reading, but I again appeal to the Taoiseach and, of course, to Senator Quirke to allow us to have a Second Reading and let us discuss this effort to put an unjust or what you might call a non-democratic Bill in proper order.

I should like to assure the House which, of course is master of its own procedure, that I have no desire whatever to prevent discussion on this or any other important matter. I only felt it to be my duty to inform the House, at the earliest possible moment, what had been the result of my own endeavours in trying to carry out what, I have no doubt, are the intentions of those who have brought in this Bill. I thought it was only right to prevent the waste of time, so to speak, of myself or whatever Minister might be concerned, since the conclusion seemed to be inevitable, and I felt it to be my duty to point out to Senators what, in my opinion, would be the inevitable result, although, of course, I do not know. I am as jealous for the democratic rights of legislative assemblies such as this as any member of the House, I believe, could be, and if there is any real desire that this Bill should be given a Second Reading, I suggest to Senator Quirke to let the matter go ahead on that basis, as I certainly do not wish to impose any restriction on discussion.

Hear, hear! That is the right spirit.

With regard to what Senator Hayes said, I think there has been some misunderstanding. I may have used words that were too narrow in connection with this matter having been discussed before, but what I meant was that the general principles have been discussed.

Yes, that is quite right.

I am not quite sure what the procedure is, but as it seems to be the general feeling that the Bill should proceed to Second Reading, I agree.

Question put and agreed to.
Bill ordered to be printed.

When will the Second Stage be taken?

At the next meeting of the Seanad.

And I take it that I am still at liberty to make a few drafting alterations?

Yes, Senator. You can do so before the Bill is circulated.