Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Wednesday, 8 Mar 1944

Vol. 28 No. 13

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

I move that the Bill be now read a Second Time. I was chidden, very gently by the Taoiseach for making a Second Reading speech on the First Reading of this Bill. In the circumstances, he gave me plenary absolution and exacted no penance. I think it is due to him to make some amends, and I propose to make those amends by making a First Reading speech on the Second Reading of the Bill. The First Reading of a Bill is a matter of explanation and the Second Reading is a matter of discussion of the principle. It became obvious, I think, in the course of the speeches on the First Reading that my attempted explanation of this Bill had not been adequate to make it understood and that, on the other hand, the principle which lies behind the Bill was accepted fully and explicitly and by no less a person than the Taoiseach himself. He had been anticipated, as I reminded the House, by the Minister for Industry and Commerce who, when an amendment was proposed which, in the main, had exactly the same effect as this Bill, replied that he could think of no case that he could make against it. The Taoiseach himself, if I may quote his words on the First Reading—I am not going to attempt to quote the speech in full; I am leaving out at this stage the qualifications which the Taoiseach made and with which I shall have to deal later—as reported at column 884 said:—

"I am as jealous for the democratic rights of legislative assemblies such as this as any member of the House, I believe, could be."

At an earlier portion of his speech, he pointed out that the democratic rights of legislative assemblies, for which he was jealous, were in essence, the rights of the Houses of the Oireachtas to control the making of laws by the Executive or any person to whom the Executive had delegated that power; because, the Taoiseach said, he felt that the power of amending statutes or suspending them was a very serious power for any Executive or any Minister to have; and that he himself had tried to separate those Orders which purported to exercise power, so that a special procedure could be adopted in that regard. Further, he said:—

"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."

At a later stage, the Taoiseach said that he personally had been impressed by the view which had been expressed previously in the Seanad on this question and that he seriously and earnestly tried to get some accommodation so that we should be able to deal with it; and his only reason for questioning not the importance, but the practicability of this Bill, was that he was not certain that you could meet both needs, that is, the needs of the emergency and the natural desire to see that representative institutions retained their full power even during the emergency. On those quotations I rest my assertion that the Taoiseach has stated that he is as jealous as any person for the rights of a representative assembly to control legislation by the Executive and I do not propose to consider any further the question of principle involved in this Bill because, as I understand, it is already accepted.

The Taoiseach is commonly credited and, I think, correctly, with having had a very considerable amount to do with the drafting of the Constitution which now prevails in Éire. That Constitution deliberately set up a form of government which is known as representative democracy, and nobody in this House can suggest that it is not one of the cardinal rules of a representative democracy that it is the Legislature and not the Executive that makes the laws. If, for the purpose of convenience, or in the stress of emergency, power is delegated to the Executive or to other people to make the laws, then the Legislature must retain the ultimate power of controlling the laws so made by the Executive. A lawyer would say that the admissions to which I have referred have already shifted the onus of proof in regard to this Bill and that it did not rest with me to persuade Senators that this Bill was necessary in principle; but that, as the principle has been accepted, this Bill must pass unless adequate reasons could be put forward by those who are anxious to oppose it.

I, like most lawyers, object to standing on legal points, and therefore I propose to examine, with your assistance, the objections to this Bill which were adumbrated on the First Reading. Before I do so, may I say this. The Bill before you is a skeleton. It is a skeleton which can be expanded or compressed and to which you can add flesh and blood. It is put before you by a person who stands here as an Independent and who has not asked one single person in this House to cast a vote in its favour. I have endeavoured, in drafting this Bill, to solve a problem.

I anticipate that my solution may not be a perfect one and, if a Second Reading is given to this Bill, in Committee it may be possible to amend it and improve it in various ways. The reason why I have not asked one single person to vote for this Bill is because I want everyone here to help with it. I want nobody to approach this from the point of view that it is introduced by a political Party, that it attempts in any way to impede the Government. I ask you to approach it as people who want to help me in solving a problem which the Taoiseach has admitted has given him great anxiety and which he says that the Civil Service has failed to solve.

Now that was the first argument that was used against this Bill. The Taoiseach said that because of the serious political issues which were involved— abstract political issues—and because he felt that it was wrong that a power such as this should be in existence, he had referred it to the Civil Service to suggest some means by which the unlimited power now indirectly capable of being reposed in them could be in some way limited. I wonder did the Taoiseach expect that the Civil Service in their various departments would be tumbling over themselves in their eagerness to suggest something which should, even in a small degree, limit their autocracy? If you were to say to a spirited horse: "Go away now and design a bridle for yourself," what do you think would be the reply of that horse if he had any Civil Service training?

"Neigh, neigh."

I cannot do better than that. I was going to suggest that he would say that he had considered all forms of bridles, from those used by the ancient Egyptians in Europe and those used by the ancient Aztecs in America, right up to the latest suggestions on the files of the Patent Office, that he had measured them, that he had tested them, that he had compared them, that he had given serious consideration as to whether rope or leather were the better; but, at the end of it all, after the closest possible analysis, he had come to the conclusion that no conceivable bridle would be suitable for him. That, of course, is the reply of the Civil Service who are asked to suggest some means by which they may have to be a little more careful about the framing of these Orders.

I have in this House before dissociated myself from the thoughtless and erroneous criticism which is usually passed on the Civil Service. But, at the same time, I am not willing to subscribe to the view that "they are the men and that wisdom will die with them." They are human, and because they are human, they are apt to make mistakes. They are human, and because of that humanity, they do not very much care for these mistakes to be pointed out and corrected. They are human, and to them the easiest way of doing a thing is the simplest and most acceptable. They are human, and they are not altogether dead to the pleasurable thrill which comes from the sense of what is an enormous unlimited power. Therefore, I say that the mere fact that the Civil Service did not suggest a suitable method of controlling the unlimited power of amending or suspending legislation is no reason for assuming that a solution of the problem cannot be found. The object of this Bill is to see if the Seanad, by its united brains and its united experience, cannot solve that problem which the Civil Service profess to have baffled them.

In this House, however, there are men who can combine the experience of very many walks of life, men of very different education and of very different outlook; and it does seem to me that, if this problem is to be solved, it is more likely that the solution can be found by pooling our brains for once instead of pitting them against each other and seeing if, after having given this Bill a Second Reading, we cannot on the Committee Stage produce a Bill which will attain the main object, accepted by the Taoiseach, without involving him in any of the difficulties which he suggested might arise.

Before going on to the further objections which were raised, I think I should deal with a matter to which I have already referred, which is not so much an objection as a ground of misunderstanding. The point has been made that Orders such as those with which this Bill deals—what the Taoiseach calls the parent Order—are, in fact, tabled before the House. This Bill does not deal with Emergency Powers Orders in general. It was quite apparent at the First Reading that some people were under that impression. This Bill deals only with Orders made by what has been called aptly the cow and calf method. The method is that you have an original Order which is known as the cow Order, made by the Government. That Order, as you would expect from a quite animal like a cow, does nothing at the time. It merely gives the cow liberty to calve. The Order you have to watch is the subsequent Order, made by the cow when it calves. In other words, the original or parent Order gives to a Minister—or anybody else, and it might be to me, since the Act goes as far as that—the power to make an Order on certain lines. Now, it has been suggested that objection could be taken and debate promoted when the cow comes into existence—but there is no statutory period of gestation for this cow. You do not know when it is going to calve and you do not know what the calf will be like when it comes.

Therefore I say it is a futile objection to suggest that, when a power is given to a Minister to do something, the whole matter can be suitably debated on the Order giving the power. That power may never be exercised and, therefore, it would be ridiculous to waste the time of the House discussing whether it is right or not. When it is exercised, conditions may have so changed that it is a very proper and beneficial exercise to which every member of the House would say "Hear, hear". The only practical time for examining the calf is when the calf is born. The object of this Bill is merely, when the second Order is made, when the circumstances are known and when the terms of the Order and the need for it are known, that it may be examined in this House; and then, if it be excessive, if it be careless, if it be oppressive or erroneous, this House can control what is done by that Order. Remember that there is nothing at the present moment to prevent power being given to the Minister for Justice, at such time in the future as he desires, by an Order made in his study, to abolish the criminal courts of the land and to substitute courts-martial for every man, woman and child in Eire. That could be done and, if it were done by this method, the necessity or the desirability of such an Order could not be questioned in either House. So much for the argument that, because the parent Order has to be tabled, there is no necessity for a provision for the tabling of the delegated order when it is made.

In the next objection, it was suggested that this Bill, if it be passed in its present form by the House, would in some way interfere with—and here I quote the Taoiseach, or, it may be, Senator Quirke—"the necessary power to do things quickly where swift action is necessary". Let me disabuse the House of that: there is not a word about that in the Bill. There is not a word in this Bill which would prevent either the Government, or the person to whom power has been delegated by the Government, from making the Order 30 seconds after he thinks it necessary. This Bill does not purport to interfere with any power of making Orders given by an Emergency Powers Act in existence.

The next argument was—and this was certainly Senator Quirke—that this Bill would make the work of the Civil Service impossible, as they would have to table all Orders. Senator Quirke said there were some 40,000 Orders in respect of fuel. Apparently that is so, as I notice that the sheaf of paper for notes which I have before me has on its back a large number of unused fuel Order forms. Again, it is hardly worth while stressing the answer to that. The Bill does not do that: it does not make necessary the automatic tabling of a single Order. So far from all the 40,000 Orders mentioned by Senator Quirke and the various Government regulations having to be brought before the House by this Bill, not one single delegated Order will be tabled, unless seven members of either this House or the Dáil have put their names in writing to a requisition, giving the name and number of the particular Order which they think should be brought before the House for discussion, and requiring that that Order shall be tabled. You have there two safeguards. First of all, you have a safeguards, in that no Senator is likely to expose himself to ridicule by asking that there be brought before the House an Order of purely administrative, local or individual importance; and seven Senators are a great deal more than seven times less likely so to do. It is only when a Minister, or another person who has made such an Order, receives a written requisition naming the particular Order which, in the view of those who signed the requisition, should be tabled before the House, that he need put it before you.

The next point made was that certain Orders might be of a confidential nature. The instance was given of an Order putting a person into an internment camp. The actual Orders in those cases are usually not made under a delegated emergency power. But can anybody conceive Orders of that nature—which are Executive, Ministerial Orders—being required to be tabled? You must distinguish between those which are known and those which are not known. If they are not known, they cannot be requisitioned.

The only kind of Order which in practice you could require for tabling would be an Order which was actually in print and published because if you did not know about it you could not require it. Someone may suggest that there could be a requisition as to a confidential order. I do not think that objection is seriously meant. Again I think you will agree that seven members would not be prepared to do a thing like that. In so far as this is concerned, I am prepared if it is in my power to do so—unless the House votes against me—to accept on the Committee Stage an amendment in this form: if the Minister or a Minister of State certifies under his hand that the publication and tabling of the Order would endanger the security of the State or public safety, that such a certificate would be an answer to the requisition by the seven Senators. In that I am adopting the procedure we use in the law courts, because in the law courts one litigant can force another to discover all documents which are relevant to the case, but if certain of these documents happen to be documents of State then an affidavit made by a Minister that the production of those documents is against the interests of the State protects the documents from disclosure. An amendment along those lines, worked out in Committee, is one which I, personally, would be perfectly willing to accept.

The last objection was that Orders affecting private firms might be disclosed. Again, that entirely misconceives the scope and nature of the Bill but, again, I would be prepared to accept an amendment that a certificate by a Minister saying that the production of the Order would involve disclosure of commercial secrets, should be a sufficient answer. I do not think these amendments are necessary because I think the suggestion is perfectly fantastic that this Bill would have any effect upon such purely administrative Orders, but if there is any fear and if Senators think that would in any way be the position, I am willing to accept such an amendment.

I do not think that this House has appreciated the moderate nature of this Bill. The Taoiseach has referred to the principle whereby legislative Orders are to be controlled. There are a number of ways of doing this. The way suggested in this Bill is milder than any way that has yet been used. The ordinary way was that a provisional Order had to be passed as a statute through the Houses. Then there was the method by which Orders made by the Executive or under Executive power should be laid before the House and should not come into force until resolutions had been passed by the House or tabled by a certain time. These methods were clearly inapplicable in the cases of emergencies and, therefore, the Government introduces in the Emergency Powers Act a provision which applies to Emergency Powers Orders made by the Government. Section 9 of the Emergency Powers Act, 1939, says:

"Every emergency Order shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling such Order is passed by either such House within the next subsequent 21 days on which such House has sat after such Order is laid before it, such Order shall be annulled accordingly, but without prejudice to the validity of anything previously done under such Order."

That is a section introduced by the Government. It provides that the Government can make an Order and that nothing ever done under that Order shall be subsequently impeached. But the Order may be discussed and if necessary annulled. Surely if the Government was willing, and thought it necessary, that the Houses of the Oireachtas should be given a controlling power such as that over Orders made by the Government, is it not very much more necessary that the House should have some similar power over Orders not made by the Government at all but made by some underling to whom that power has been delegated and who will not have the same responsibility and care as the Government that have made such an Order? The provision I have drafted follows word for word the provision in that section. It is provision for having the Order tabled, provision for discussing and annulling it.

In respect of these Orders, which should be much more jealously guarded than Orders made by the Government itself, I have gone further and suggested that there should be no automatic tabling of the Orders at all, and that they should be merely tabled if seven responsible members of the Legislature think it is necessary. Could a Bill be more moderately drafted or less oppressive than that? It does not provide that every Order shall come before the House. It gives full scope for having an Order made as soon as anyone thinks fit. It allows that Order to remain in force, and whoever has made that Order cannot be impeached for anything done under it. It merely says that if the Order turns out to be bad Senators and Deputies will be able to say: "Put it before the House, so that we will see if it may be annulled." And, of course, even if an Order were annulled the Minister would make another Order next day embodying the criticisms made and improving the Order which had proved to be defective.

If I were to say that this was an opportunity for this Seanad to subserve at least one of the purposes for which it was created, some people might take umbrage at the form of the expression. Let me put it in a very simple way. It has been suggested that it is impossible to combine this principle which everybody accepts with practical work. I do not accept in this or indeed in anything that word "impossible". I believe it is possible. I believe that the Bill I have drafted does do it, and I am quite sure that it can be improved and amended in Committee. Let us approach this in a spirit of co-operation. Let us first of all give it a Second Reading and let us then unite our brains and our experience. If you do, I am perfectly certain that a Bill will emerge which when it has passed this House will be adopted by the Taoiseach as a Government Bill and which will combine the principle of representative government with the needs of the emergency.

I have heard the very clear exposition of the provisions of this Bill from Senator Kingsmill Moore. Certainly he has not been excessive or violent in what he has urged on the Seanad. I think all of us, not only in recent months but for years past, have been aware of the dangers that lurk in an excessive power to legislate by Order. I use the words "to legislate by Order", but my chief objection to it is that it is not legislation at all, but making a law by mandate or declaration, not by legislation. That practice went on very largely for many years before the present emergency and it gave rise in other countries with democratic constitutions to a considerable amount of uneasiness inasmuch as it increased the power of individual Ministers to add to the law that Parliament was considering or was about to accept. Everybody who gave attention to the matter felt uneasy about that condition. One of the highest legal authorities in a neighbouring country wrote a book specially to explain how unsafe it was to allow such a habit to grow. However, it was not interfered with and it grew enormously during the emergency, which affected other countries as well as our own. Far more laws are now enacted on the authority of a Minister than on the direct authority of Parliament. That is so in a country where the abuse is, perhaps, not so great as in this country. Perhaps I should not use the word "abuse" until I have adduced some argument to justify its use.

Some of us were anxious that this special legislation should endure for the emergency only and should not persist for a longer period. I do not think that any of us four and a half years ago had any conception that Emergency Orders would flow out in such torrents as has been the case during the past few years, Many of us have seen the drawbacks and the viciousness of the system of taking away the power of a Parliament to legislate for the country for which it is supposed to legislate. Many people who have not taken the trouble to condemn the system have felt very unhappy about it, and the matter has been considered by many members of the Oireachtas.

I may be permitted to refer to the opinion expressed by a commission set up six or eight years ago to consider plans for a new Seanad. At that time, the Seanad had disappeared from our Constitution and a commission was appointed by the Government of the day to consider the advisability of establishing a new Seanad. That commission considered many and varied topics. Amongst those topics, was this question of legislation by Order, and the commission expressed an opinion upon it. The report of the commission is an awkward one with which to deal because it is a personal report by the chairman of the commission, the late Chief-Justice Kennedy. It states the decisions of the commission as a whole in regard to many points and, at other times, it states the views of a section of the commission. One has to attend to the wording in order to be assured as to whether it is the opinion of the commission or of a section of the commission that is being stated. That commission had as members a number of people with Parliamentary experience. Some of the members are now Senators. The opinion expressed by the commission on this matter was not a majority or group opinion. There was no dissent from it. The suggestion was that Orders made by way of legislation, or for carrying out legislation, should be the particular care of the Seanad. Such Orders, it was held, might be the peculiar study of the Seanad with a view to deciding whether, in the opinion of that body, they should become law or not.

I remember the discussion that took place at a meeting of the commission in an adjoining room. I do not think that I am misrepresenting any members of the commission when I say that none of them was opposed to that measure of protection. Whether that recommendation or the proposal by Senator Kingsmill Moore, which we are now discussing, would be the more efficacious, I do not know, but the present proposal falls in well with the ideas of the commission which considered this matter. There is nothing, therefore, revolutionary, radical, unconstitutional or anti-constitutional in accepting such a measure as Senator Kingsmill Moore proposes. I understood from his speech just now that he is not tied to the ipsissima verba of the Bill which we are discussing, that he is quite willing to consider any amendments to improve the measure that the Seanad considers advisable. We must keep before our minds the necessity of protecting democratic legislation and not allowing it to lapse into a series of mandates or ukases from individual Ministers, however much we may respect their judgment and admire their devotion to their duties. I think I am not exaggerating when I say that, when special legislation is introduced for a specific purpose, it has a way of being carried on for months or years after the conditions that called it into being have disappeared. Some of us may remember that, in another country, it was found necessary to control the sale of cigarettes between 1914 and 1918. Orders which were issued at that time for the purpose of dealing with so simple a matter as the sale of cigarettes during a time of emergency were carried on for years after the emergency had ended and conditions of normal peace had been restored.

From mere inertia, a dislike to change an Order in existence, it is very hard to avoid these things being carried on, of people being hampered and tied up and their liberty interfered with by Orders which have no relation to the circumstances existing at the moment. I think we ought to do everything in our power to make it clear that, in the opinion of the Seanad, these Orders are an abnormal form of government. I do not say, of course, that very many of these Orders are not necessary. I am sure most of them are, at any rate at the time they are made. I do not think that any of us would move in this House to have the power of making Orders abolished. I certainly would not join with any fellow-Senator who wished to make that the policy of the country. The power to make Orders is very useful and very necessary, particularly in times of emergency and for convenience at other times also, but it constitutes a danger which we have to guard against.

Senator Kingsmill Moore's Bill calls for a very simple precaution which would, I think, avert the chief danger arising from these Orders under which we are living at present, and the tenor of which most of us do not know or cannot find time to know. I certainly do not know. Senator Kingsmill Moore quoted the enormous number of Orders in existence at present on some minor matters. My memory does not retain the number of them, thank God. Is there any Senator who could reckon in the middle of the week the tenor of the various Orders that we get every day? They are flooded out in the cataracts that we have been accustomed to during the last four years.

I hope that the Seanad will decide to move in the direction that this Bill points, whether they decide to adopt the Bill as it is or with amendments, which probably would be the more practical and feasible thing to do. I am sorry for detaining the Seanad, but I have come on the quotation that I want to give from the statement made by the chairman of the commission, the late Chief Justice Kennedy, to which I referred earlier. Paragraph 9 of the report of the commission reads:

"The commission is of opinion that the examination of the Rules and Orders for giving effect to legislation also affords material for the special attention of the Second House, or of a special joint committee of both Houses set up for the purpose."

I direct the attention of Senators to that statement: "The commission is of opinion." It does not say how many members: whether that was the opinion of a majority of the members or of so many members. It says that "the commission is of opinion that the examination of the Rules and Orders for giving effect to legislation". As that is given in the singular case, it would seem to suggest that, among the members of the commission, there was only one opinion on this matter. The report does not say whether the commission was unanimous or not. It is impossible to say because the report does not state definitely that it was the unanimous opinion of the commission, but the wording certainly suggests it. But that was the policy which this commission recommended six or eight years ago, and which, I hope, the Seanad will back up now to the extent of supporting Senator Kingsmill Moore's Bill or such modification of it as they think fit.

I rise to oppose the Bill. Notwithstanding all the fancy phrases that we have had from Senator Kingsmill Moore, I do not see any reason whatever for changing the opinions that I expressed here when this particular Bill was last under discussion. Senator Kingsmill Moore gave us a picture of the horse that was sent to look for a bridle for itself. He likened the Civil Service to that particular horse which came back and said that it could not find any bridle suitable for itself. I would hand back that story to Senator Kingsmill Moore and tell him that he is himself in the position of that horse, and that a lot of very sensible people who sat in this House before he came into it decided that, in this emergency, it may be necessary to apply certain restrictions, to provide certain bridles and to give certain liberties to certain people, to certain individuals or to certain Ministers. When Senator Kingsmill Moore came along he said that those people did not know what they were doing, and that he was the only one that could point out to them where they were wrong.

Listening to the Senator, one would imagine that something terrible had happened within the last week, month or two months. Is it not a fact, however, that during the last four and a half years the country has carried on under the system which the Senator is now challenging, and that there has been no serious complaint made against the system? I think, regardless of what Senator Kingsmill Moore tells us, that the average person in the country would resent very much the suggestion made by him or by anybody else that any further newfangled bridles are necessary to hamstring the present Government in their conduct of affairs during this emergency. Senator Kingsmill Moore, in his enthusiasm, said that, if some such arrangements as he suggests are not accepted, no questions can be asked in connection with any of these Orders. The Senator must know as well as anybody else that there is no trouble whatever in having a question asked in either House. That has been done in the past. I am afraid that the Senator completely under-estimates the seriousness of what he himself suggests. I think he has grave doubts about the statements made by me. Unfortunately, I was called out while he was speaking, but the Senator seemed to be doubtful about certain statements I made when speaking on the last occasion. The Senator, however, can easily verify them. The fact, at any rate, is that in connection with the Department of Supplies 50,000 petrol permits are issued every month, and 23,000 motor vehicle permits are issued every month.

The same thing applies to the Department of Industry and Commerce where thousands of instruments are issued in connection with turf, the compulsory acquisition of land for drainage purposes and the making of roads into bogs. Were it not for the fact that such things were possible we would be in a very different position to-day from the point of view of fuel supplies. Our fuel requirements are completely dependent on many of those Orders, but Senator Kingsmill Moore tells us that his Bill would not, in fact, restrict things at all. He bases his whole argument in support of the Bill on the ground that it would not be possible that any seven members of the House would allow themselves to be used—if you put it that way, although it is a strong term to use. I have no doubt whatever that seven people could be found to put their names to an application of that kind, if it suited a certain purpose. I do not suggest that seven people would come together and assemble themselves in a conference and say: "We believe we can do a lot of harm to this Government if we sign this document." I do not believe that there would be seven people who would deliberately do that, but seven people could be found who would be glad to score a point over a Minister by demanding the tabling of an Order.

The whole debate is entirely unnecessary. As was pointed out the last day, it would be possible, because of personal spite against a firm, to demand the tabling of a document which would not be in the interest of that firm. To get over that point, Senator Kingsmill Moore says he would be prepared to leave it to the Minister to say whether or not it was in the national interest, or contrary to the good of the individual or the firm concerned, or whether or not it would be wise to table a motion. Then we come to the point where we would have borderline cases, cases which might be decided one way or the other. If the Minister, in such a case, said he did not think it would be wise to accept the request, then the people who had originally made it would bring along a motion asking him to explain the grounds on which he came to that decision. The whole fact of the matter is that the result of this Bill, if it were to become law, would be a tendency to retard the wheels of progress, so far as this emergency is concerned.

In connection with tillage or the acquisition of land for various purposes, as I have pointed out before, there would always be in the public mind the possibility that such an Order might be annulled, and there would be continual agitation. I could well visualise Senators being canvassed by people in the country to put their names to such a document in the hope that, as a result, they might score a point over a political or a business opponent. Senator Kingsmill Moore goes to great lengths to tell us that he stands here as an Independent. One would think he was the only Independent in the House. We are all supposed to be independent and non-political here, and the fact that certain groups stand together and, generally speaking, vote together is not, after all, unreasonable to expect.

I hope you prove to be independent on this occasion.

I would say that we would really get excited if Senator Kingsmill Moore began to vote on this side of the House.

Set an example.

Like Senator Kingsmill Moore, I am a very young member of this House and I had a tremendous lot of sympathy with the idea behind the Bill which, I felt, was the preservation of our democratic institutions. But, the more I listened to him the more I discerned the fact that while he himself appreciated the difference between the cow and the calf, he was not aware that he was perpetrating another Irish bull in the form of this Bill. He says he objects to this delegated legislation, and that he cannot know about it if the thing is not printed, but that he is quite prepared to accept an affidavit from the Minister about a thing on which he knows nothing, to the effect that there is nothing wrong in it. I cannot see the point in the amendment which it is suggested would be brought forward in the course of the further stages of this Bill. The Senator says, in effect, that if a Minister certifies that it is not in the public interest that the Order should be tabled, he is quite prepared to accept the Minister's certificate. But, in effect, is not that what is happening to-day? It is, by inference, I would suggest, because when the Emergency Powers Act was passed, it was accepted that the Government, in their wisdom, would not publish certain Orders on the grounds of public security.

That is not publication.

I am assuming by inference that the same thing applies. You are now saying that if a Minister certifies that it is not in the interest of public security that an Order should be tabled you are prepared to accept the Minister's certificate. I hold that that, in effect, is what happens at the present moment. The Government are not publishing certain Orders or disclosing their contents. I cannot claim to have as good a knowledge of logic as the Senator, but I am talking realistically and I cannot see that there is any real difference between the form of amendment as suggested by him for a further stage of this Bill and the form of procedure of acceptance of the Orders made by the Government to-day. I would say that when you go on to suggest that the Minister for Justice might make an Order abolishing the courts you are straining at the gnat. I feel that if any Minister for Justice abolished the courts and legal procedure, he would meet with public acclaim. We all know that the courts should have been abolished long ago, and the longer I am a member of the House the more I am convinced that it would be a welcome Order. But to imagine such a thing would happen, or that any Minister for Justice, either present or future, would make it is overstating the case and is not facing the real facts of the position.

I was very sympathetic towards what I thought was the underlying idea of the Bill, as I said that, so far as it could possibly affect it, the Legislature would control any decrees made by the Government which might involve the common good. But when you say you are prepared to accept an amendment enabling the Minister to give a certificate, to my mind it seems almost entirely opposed to the principle of the Bill. I do not see there was any reason for introducing the Bill, if the Senator had any such amendment at the back of his mind, and I am opposing it.

I have an open mind as to whether it would be possible to amend this Bill on the Committee Stage in such a manner as to make it acceptable to the Taoiseach and the Government, but I do feel this, Sir, that in view of the generous statement and the generous attitude taken by the Taoiseach on the First Reading of this Bill, it is disappointing now, on the Second Stage of it, to hear the statements of Senator Quirke and Senator O'Donnell.

I feel when the Taoiseach suggested, on the occasion of the First Reading of this Bill, that it should be printed and given a Second Reading, that he put this House on its mettle—that he put us to the test. He has, in fact, challenged us to produce a Bill that will act as a brake on delegated legislation and yet not interfere with Ministers and higher civil servants in the course of their duties during the emergency.

I feel, if this House rejects the Bill on Second Reading, that we will be definitely running away from that challenge. I suggest that the House should pass the Second Reading of this Bill and see what we can make of it on the Committee Stage and, if we have to admit failure ultimately on the Report Stage or the Final Stage, let that be the stage on which we will retire from the struggle to solve this very vexed question of delegated legislation by Order rather than by Act of Parliament, but do not let us run away from the issue at this early stage of the Bill before anyone has had the time or the opportunity to see what can be done in the way of its amendment.

I understood when we had this Bill under discussion some short time ago that the House gave permission for a Second Reading in order that a case might be made for the Bill. It was held by various Senators that it would not be right to oppose the First Reading, that permission to produce the Bill should be given to the Senator, so that he might have ample opportunity of putting before the House reasons for the suggested amendment. I have listened to Senator Kingsmill Moore, but I have not found him advancing one solid, practical reason why this Bill is necessary in the public interest.

He gave us some quotations. The first quotation was from the statement of the Minister for Industry and Commerce when he was dealing with the Children's Allowances Bill, and he states in support of his argument here to-night that, because the Minister for Industry and Commerce accepted a suggestion of his that certain Orders made under the Children's Allowances Act should be laid on the Table of the House and the Minister accepted that suggestion and embodied it in the measure, he had by that very act given Senator Kingsmill Moore something to go on in relation to all the Emergency Orders. The subject under discussion that night was a particular Bill and not an emergency Order. We have listened here to-night to a number of quotations of that kind.

Senator Kingsmill Moore went on to refer to the cow and calf method of procedure. As I understand the procedure, this cow Order that the Senator referred to is laid on the Table of the House and, as a body of intelligent people, when such a document is laid on the Table we should have, I think, sufficient intelligence to gather from that Order what it contains and what can or may be done under it, and we have power there and then to put down a motion to have it annulled. But, of course, Senator Kingsmill Moore goes further and says we must wait until this cow calves. He went on to state that we may at some time have a Minister for Justice who, under the Emergency Powers, might abolish the courts and set up a court martial or military courts of various kinds. Surely, when such action would be contemplated, that would be the proper time for Senator Kingsmill Moore to ask the House to do what he now proposes? I suggest that as the Senator has not made a case for the Bill to the satisfaction of the members of this House, we must oppose the Second Reading.

I am rather concerned to see that the House appears to be so very complacent about the privileges of Parliament. I do think we ought to be very much concerned at the increasing growth of legislation through Orders and we ought to welcome any Bill which puts a reasonable—I would emphasise the word "reasonable"—curb on such activities. It is well known that these powers are necessary, but I think in any democratically-minded State they are very much deplored and there is every desire to limit them without impairing their usefulness—to limit their extension in every possible way. Therefore, I am concerned that the House seems to be willing to allow its control over legislation to be relaxed.

With regard to the reasonableness of this measure, I feel that Senator Kingsmill Moore has shown absolutely fully that there is no danger involved in the proposal he puts forward. There are ample safeguards for the efficient conduct of business and no business need be in any way retarded by reason of the safeguards that he proposes. Senator Quirke—and this is not surprising, coming from him—draws a most fantastic picture of seven mischievous Senators setting out to obstruct the proper efficiency of government. I think there is no justification for anything like that. Our record in the past has never shown that we have any desire to obstruct the efficiency of government or the proper use of legislation by Order.

I could not follow the arguments of Senator O'Donnell. It appears that he made out that every Order that was delegated that could not be tabled was so excluded from the Table on account of public security. Not a bit of it. There are a great many Orders that are not tabled for which no Minister would for a moment claim public security as a protection. It simply happens that they are delegated. They are the operative Orders as against the enabling Orders. If I am right, the Order that is tabled is an Order giving general powers to make Orders on a certain subject. Nobody objects to the general powers, but there may be definite objections to specific Orders and if these specific Orders are not tabled the Legislature would have no say in the matter.

I feel this is a most important matter in a democratic State. It is in the long run advisable that the Government of a country should be vigilant about its powers; otherwise we will drift slowly into the position that has now arisen with regard to local government. I have heard it said on all sides that men are increasingly loth to enter local government because so much power is put into the hands of Ministers and so little responsibility is left to the local bodies. There is considerable danger if Parliament allows these powers to get more and more into the hands of the Executive. You will get indifference and a lack of that vigilance which is necessary to the proper functioning of any democratic machine.

We talk glibly about democracy, but it is a very difficult thing to put into force, and if we want a country to be governed in the interests of freedom and democracy we must be alert and vigilant; we must see that the people are educated and instructed as to what it means and what are their responsibilities, and the more that is left to the Executive and the more that is taken out of the power of Parliament, the greater is the danger that democracy will be an inefficient instrument for the protection of the State.

To emphasise the point made by Senator Quirke, that this House was supposed to be independent, I rise to oppose this measure, notwithstanding the fact that the name of my colleague, Senator Foran, is appended to the Bill. My position in this matter is very simple. I approach all matters of this kind from the point of view of the emergency which exists in this country, and, in dealing with measures of this kind, that is the overriding consideration with me. I know that Senator Kingsmill Moore and his colleagues, in introducing this Bill, were actuated by the highest motives and had no ulterior object in doing so. I know that they are desirous of preserving the democratic institutions of this State. I am just as anxious as they are, but this emergency, if we are to believe all we are told, and I believe it, is with us in a more aggravated form at present than ever before, and, while that condition continues, I am not prepared to take any power away from the Executive which we gave five or six years ago when this House, those of us who were then members, voted to give them the Emergency Powers Act. That, in brief, is my attitude towards this measure.

Senator Kingsmill Moore has endeavoured to strike fear and terror into our hearts. He envisaged the position which might be created if the Minister for Justice were to abolish the ordinary courts of the land and set up courts-martial to try the citizens. I can conceive a position arising in which that might be necessary.

The Labour Party do not want it.

Leave the Labour Party out of it. They can look after themselves and I can look after myself. I do not think there is any real desire for this measure among the people. The people are intelligent enough to see to it that, when this emergency passes, the Parliamentary institutions will come into full operation again, that the restrictions on liberty of speech and liberty of the Press will be cleared away, and conscious as I am of the restraints and restrictions imposed on all of us by Emergency Powers Orders, I should prefer to continue to suffer them rather than to precipitate any crisis by way of the Bill promoted by Senator Kingsmill Moore and his colleagues.

I do not think there is any real need or desire for this measure. I do not agree with Senator Quirke that we have not suffered from these restraints and restrictions. We have all of us suffered in some degree, and, while I am as anxious for the maintenance of the democratic institutions of the State as those behind this Bill, I really do not think we ought to take away from the Executive the powers which have been given to it. It seems strange that we have gone on for five, and nearly six, years under all the restraints imposed by Emergency Powers Orders and that it is only now becoming manifest that they are chafing some people, at any rate. I do not impute any wrong motives or evil intentions to the promoters of the Bill. As I say, I approach this measure from the point of view that this emergency still exists, and so long as it exists, I am prepared to give this Executive, or any other Executive which may follow it during the course of the emergency, all the powers they need for the maintenance of that neutrality which was decided on by every section of the House.

Senator Kingsmill Moore says that the Bill is in skeleton form and that the Seanad can put as much flesh on it as it desires. I think it was his job to do that, to dress the skeleton up before presenting it to the House. I hope, however, that the skeleton will be restored to the cupboard for the duration of the emergency.

Why not bury the skeleton?

It will do just as well to leave it in the cupboard. I know that it is not introduced by a political Party, but, still, one cannot get away from the feeling that this measure would be used to bring many matters before the House which it might be well not to bring before the House. There are many measures which one could see being introduced by way of Emergency Powers Order which could be brought under the terms of the Bill. I do not at all agree that the civil servants are so desirous of grabbing all the power they are supposed to have at present. I am sure the Civil Service as a whole would be glad to be rid of all this worry and trouble and to revert to their ordinary avocations, and I do not at all agree that bureaucracy is endeavouring to control and guide the affairs of this State in the way in which Senator Kingsmill Moore suggests. I am not prepared to give any support to a measure which will impede or impair in any way the job which the Executive of this country has at present of maintaining the neutrality of the State, and that, simply, is my position in the matter. I do not wish to reply in detail to the points raised by Senator Kingsmill Moore, Senator Rowlette and the other Senators who are promoting the Bill.

The term "cow and calf" has been used repeatedly in this debate and I think it is appropriate that the Bill should be called a cow-and-calf measure because it originated in the humane slaughter of animals. That is an absolute fact. Senator Kingsmill Moore has become obsessed by a debate which took place here in connection with two Emergency Powers Orders. One was the "cow", and it was laid on the Table of the House in 1942 and implemented subsequently by an Order of 1943. Senator Kingsmill Moore, speaking of this Order and the method of its implementation by the Government, used the word "chicanery", which word he subsequently withdrew. He said:

"I am lost in admiration of the ingenuity which thought of this method of repealing legislation without bringing it before either House or giving either House a chance to say a word. I withdraw the word ‘chicanery' and substitute "ingenuity'."

He took up columns and columns of the Official Report in making his remarks, but I think that any of these Orders, as I think has been mentioned already, can be discussed in either House. They can be raised by question in the Dáil and can be raised here, as this very Order was raised by Senator Kingsmill Moore.

The original Order, Emergency Powers (No. 212) Order, 1942, was laid on the Table of both Houses. It was, if you wish, not very explanatory. It appears in the Official Reports at column 173. It is signed by Eamon de Valera, Taoiseach—I do not want to read the Order as it is already in print —and it means that the slaughter of animals by an approved instrument could, at any time the Minister thought it necessary, be suspended. It lay there for over a year and then, on information which came to him and which some of us did not agree was absolutely correct, he implemented the Order in a subsequent Order by withdrawing the necessity for the use of the humane killer. That is the genesis of this Bill and if there is nothing more serious in any of the other Orders, I think this is all merely a storm in a teacup which does not justify the time spent in debating it.

I was personally very interested in both of these Orders. I read the first Order when it was published, and I saw the meaning of it. When it was enforced, I stated in this House that I did not see the absolute necessity for it. It was worked in as an Emergency Order because, but for the existing emergency there would not have been a shortage of humane-killers, or, if you wish so to call them, "guns".


It is not advisable to introduce that Order into this debate.

I am only relating it to the other Orders. That is all I wish to say but, as the matter was referred to in the debate, I want to bring it back to the source, as it is because of that we have this Bill. We have full powers to discuss Orders that are placed on the Table of the House and, if we have sufficient interest, we can see their implications. If we hear of any subsequent Orders which would not be in the interests of the country we have power to raise the matter in either House. I cannot anticipate in this emergency period a Bill such as this being at all essential.

I wish to congratulate Senator Kingsmill Moore on introducing this Bill. The issue seems to me to be a simple one, whether we do or do not believe in democratic government; whether we believe that democratic government consists of a Government elected by the people, or whether we, as part of the Legislature, should have power to criticise the acts of the Government. As one who is opposed to the Emergency Powers Order, as introduced for one purpose and used for another by the Government, I am going to support the Second Reading of this Bill. I think Senator Kingsmill Moore has made abundantly clear the reasonable purpose he had in mind in introducing this measure. I have not heard any argument from any Senator opposite, or from any Senator on this side of the House, that has lessened my feeling that it is my duty to support a Bill which would limit the power of the Government to some slight extent, while not crippling them in any way from carrying on the essential work of government. That is what I think this Bill proposes to do.

Therefore, members of this House who are more interested in supporting the Government than they are in supporting democratic principles should vote against the Bill, but those who favour democratic principles rather than favour supporting the Government, should support this Bill, which does in some small degree meet the case which the Senator who has just spoken mentioned, but which I do not intend to follow, because I intend to support the Second Reading.

I find that this Bill has been discussed in a rather disappointing manner. Senators in the Government Party really take the line that everything the Government does is all right, that nobody need worry about it, and that anybody who is worrying is a mischief maker. Senator Kingsmill Moore put the matter very clearly and very calmly. Senator O'Donovan a moment ago said something which, I think, was for the first time absolutely dealing with the Bill. It is quite untrue to say that the Bill proposes to take power from the Government. It does not do any such thing. It proposes to leave power with the Government. It is even open to argument that the Bill does not confer much extra powers on this House. What is in the Bill is that if seven members of the Seanad ask for any particular Order to be tabled, it will be tabled, and if they move a motion of annulment and if the Seanad passes it, the Order will be annulled.

That would be the new power of the Seanad. Two Senators, as Senator O'Donovan indicated, have power at present to put down a motion asking that a particular Order made by a Minister—Senator Kingsmill Moore called it a calf Order—be revoked. On February 25th, 1942, I find an entry of the proceedings of this House when we resumed a debate on a motion of mine:

"That Seanad Eireann is of opinion that Emergency Powers (No. 98) Order, 1941 (Compensation) Scheme, 1941, dated 17th September, 1941, should be revoked."

That was an Order made by the Minister for Finance to settle the compensation to be given for personal injuries sustained during the bombing. We had a debate on that motion in this House. It only required two Senators to have the motion put down, and as a matter of fact when certain speeches were made in the House the Minister for Finance in an entirely proper manner intervened. We adjourned the debate as he told us he was going to make certain changes in the Order. That power already exists, so that the power asked for here, that seven Senators should be able to deal with an Order, is not so very much extra.

I do not understand Senator Campbell's view, that in some way the Bill contemplates destroying the necessary powers that this or any other Government should have during an emergency or that it would in some way imperil the security of the State. That seems to me to be pure imagination on the part of Senators who put it into the Bill. If we are to discuss the Bill at all, we ought to discuss what is really in it. For my part I find the power we have already to be not insufficient. I will vote for the Second Reading, but I remind Senators who think it an immense change that it is not an immense change. It provides that the House can annul an Order, but in a House such as this, with limited powers, what you really need is power to discuss and not so much power to annul. If you cannot convince the majority or the Minister of the reasonableness of your case you will not be able to carry a motion. The Bill does not imperil our neutrality. We are getting into the position that one can hardly open one's mouth, but some one says "Ssh, what about our neutrality?" There is nothing in this Bill to justify any such statement.

I agree with Senator Campbell— having disagreed with him so strongly —that I do not think civil servants are sitting in offices making dreadful plots for the ordering of our lives. I think they would be glad to get rid of some of these powers. On the other hand, civil servants and indeed Ministers, and all Governments have always the feeling that what they want to do is very urgent. Nobody has had more experience of that than I have. Every Ministerial Bill is always very urgent, and they do not particularly like having anybody saying anything about it. We had other motions here. We had a motion dealing with the importation of fabrics, for instance, and I think that it is entirely a wrong line for a member of this House to say that you could get seven mischief makers here who would put down a motion that would do harm to the State. That kind of talk reflects no credit on anybody, least of all on the person who used it.

I was the person who said that. I said, not that I believed that seven Senators would do something in the belief that it would harm the State but that seven Senators could be got to put down a motion if, for no other reason, than that they believed it might embarrass a Minister. I repeat that you could get seven Senators to do that and there is the list.

The Taoiseach recently wanted to get rid of the English language. I always feel after listening to Senator Quirke that we should get rid of the English language and use only the Irish language in this House because I can never follow what the Senator means when he speaks in English.

If the Senator knew Tipperary English he would.

I know Tipperary English quite well and I know what they say in English in Tipperary about the Senator, but that is another day's work. I will not tell the Senator because I know it would be quite out of order. In any case, the Senator said that seven Senators could be found in this House willing to put down a motion which would embarrass a Minister.


What harm is there in that? Are we to make the putting down of a motion which may embarrass a Minister as one of the seven deadly sins against Caitlín Ní Houlihán? Did anyone ever hear such an absurd doctrine preached in a parliamentary assembly, that to embarrass a Minister is a sin against our national institutions? It is no such thing. Senator Kingsmill Moore moving the Second Stage actually put into other words an idea which I suggested on the First Stage, namely, that if a Minister certified that it was in the public interest that a particular instrument should not be tabled, it need not be tabled. That disposes, I think, of Senator Quirke's suggestion. I, however, have a different view from Senator Quirke as to the facility with which one can get Senators to move in matters of this kind. No matter to what part of the Seanad one turns, I think it would be very difficult to get seven Senators to do anything except they were seven carefully marshalled gentleman under a Whip.

Another point to which I should like to refer is that the Bill takes away no power from the Government and that it does not give us any extra power to criticise the Government or to embarrass Ministers. We already have every power in this respect that we desire as far as debate is concerned and as far as criticising Ministers is concerned but there is this to be said, and in a way it is an argument against the Bill: modern Parliaments have an immense number of functions, functions which have increased enormously in the last 40 years, particularly since about 1911 and since the Lloyd George Act of that year. Every year since, Parliaments and Governments have been asked to increase the scope of their activities. For that reason it is becoming increasingly difficult for any Parliament to follow in detail what is happening. It is quite open to argument that a Parliamentary assembly which endeavours to follow all the details of government is missing the wood for the trees; in other words, that we should not be so interested in details as to miss general principles. For that reason, I think we should not be so terribly excited about following every detail of government. I think Senator Sir John Keane was unduly alarmed about the way in which Parliamentary assemblies are having their functions usurped, as he said. The simple truth is that Parliamentary assemblies cannot do all the work which they delegate to Governments.

I do not want to encroach unduly on the time left to the Taoiseach to speak on this Bill. In any event, the Bill makes a very modest proposal and the amendment that Senator Kingsmill Moore suggests would remove any suspicion or suggestion that we might discuss something which it would not be in the public interest to discuss. This question has been dealt with by members on the other side of the House, with one exception, simply on the basis that this is a grand Government, that it makes splendid Orders and that it is not right for us to interfere with them. I do not take that view at all.

I want to make my position clear. I signed this Bill and I am very glad I did so because I have learned in this debate how little importance a number of people attach to Parliamentary government. Many Senators here appear to be willing and anxious to throw away their powers and rights. That is the only argument I have heard against the Bill. Because certain people put their names to the Bill they are called mischief-makers and trouble-makers, but these are the people who make any country, not the subservient nor the slavish followers of any Government. They make nothing.

I make no apology for having put my name to this Bill. I think that the Taoiseach himself made the best possible case for it on the First Reading when he told us that he himself was very much concerned about government by Order and had taken steps to repair the injury done to democratic control, but he found that he was not able to find an alternative. He certainly made an excellent case for the Bill. To argue that when we claim the right to question the actions of the Government, of Ministers or of people appointed to act on their behalf, we are willing or anxious to do harm to the country, is ridiculous and it is certainly an argument to which I am sure the Taoiseach himself would not subscribe. Senator Quirke has doomed this Bill, and it is a pity, because there is too little democratic control in the world to-day. As I see it, by opposing this Bill we subscribe to a dictatorship. That is how it strikes me. If we are to preserve the rights of Parliamentary control, we certainly should have the right to criticise these Orders in a democratic way and without doing any injury to the safety or the security of the State. I know that the Taoiseach desires an opportunity to speak on this Bill to-night, so I shall give way to him, though I have a good deal more to say on the Bill.

I do not know that I can add very much to what I have already said on this subject on a few occasions. Senator Kingsmill Moore asked us on the last occasion to give a chance to the members of the House to express their views on this matter, to point out how, without clogging the machine, so to speak, a method could be found which would give greater control over Executive actions than obtains at the moment. My own attitude, as I pointed out to the Seanad on that occasion, was that we would not get any distance by doing so. We would have very largely a repetition of the arguments which were adduced here on a previous occasion. I had hoped, however, that the interval would have been availed of by those who sponsored this Bill to show what amendments they thought could be made in the Bill, so as to improve it. As it stood, and as it stands, it seems to me to be a useless Bill—really useless. If it is going to be operated in one way, it will be harmful; if it is not going to be operated in that way, it is practically unnecessary. As Senator Hayes has pointed out, the House has already most of the powers of bringing matters before it for discussion. Senator Kingsmill-Moore is very naïve in his suggestion that we give the Bill a Third Stage—the Committee Stage. I have no doubt that, if he got to that stage, he would say: "We should work the Bill for a little while and see how it operates, so let us pass it now." There is no doubt whatever that that is the line. I think it is time to act seriously and to make up our minds about it. My own view is that it is a useless Bill.

I have tried to get some sort of classification of all these instruments and I find it very difficult indeed to do so. They run all the way from acts that are simple executive acts to wider administrative acts, using the word "instruments" in the sense in which it is defined legally. Then you have those of a more legislative character. If you take them all in the sense given in the Bill, you will have an impossible situation, unless you make all those exclusions which have been suggested already. That is to say, you will have to exclude those matters which, in the public interest, ought not be discussed. It would be necessary to obtain the Minister's certificate that it is not in the public interest to discuss a certain Order, and there would be a dispute about that. Then, if the Minister wants to satisfy those who dispute it, he will have to go into the merits of the case and will involve himself in difficulties, which may mean revealing the things which, in the public interest, ought not be revealed. There are also those acts of a confidential character, where the private and confidential business of persons would be exposed. There will be other classes, too, so you will have to exclude from the definition large classes of Orders. I do not think that Senator Kingsmill Moore, if he were given a few years to try it, would get the definition to include the type you want and to exclude the others. Up to the present, he has given no indication that would give a definition saying which were the ones which could be brought up and which could not be brought up. I certainly have not been able to find any general definition here.

With regard to remarks that the civil servants do not want to bridle themselves, my experience of the civil servants over some years now is that, if we ask them genuinely to try to do something, they set about doing it and certainly try to do it. We must remember that their relations to Ministers are simply this. The Minister is the one to give the orders. They are executive officers and, if the Minister says he wants to get something done, it is their duty to do it. They try honestly to do that. If I ask civil servants to go into this and try to give me a report on it and to get reports from various Departments, to see if a satisfactory solution can be obtained, and if I examine their report and see in it that the arguments given one way or another do not support their own statement that a solution is not to be found, then I ask why would not such and such a solution do. In other words if, given the facts, I think their conclusion is not in accordance with the facts, I can ask them to examine the question again. Every Minister is in the same position. The civil servants are there to give their views honestly to the Minister about certain things, but they are also there to undertake his instructions and orders and to obey him. As far as my experience of the Civil Service is concerned in that respect, there is the fullest recognition of their duty. A wise Minister will listen carefully to the advice his officers give him and will carefully examine the information which they put before him; but, if the Minister takes a line different from that of his advisers, he is entitled to do so and it is their duty to do what he says ought to be done. It is a mistake, therefore, to say that the whole thing lies in the hands of the civil servants.

If I may just digress slightly on this matter by talking about that, I might say that, no matter what system of government you may have, a man cannot simply undertake to deal with all details, so that there must be some agents all along the line to deal with certain things. The best method of getting that done is to put a certain amount of responsibility on those people down along the line for their actions. There is no other way but that of giving them duties and holding them responsible for what they do. That is, of course, within the machine; the Minister has to take public responsibility for everything that is done in that particular way. He can deal with an officer inside, if the thing is wrong, and he has various disciplinary measures at his disposal. If a Minister asks the Civil Service to produce something which might either limit their own powers or limit his power—and, ultimately, it is the Minister's power that would be limited in this measure —they will work honestly to produce it, if it can be done.

I got this report and I was fully alive to the fact that people do not naturally curb any powers that they may feel necessary to solve their own problems, but it is not simply for love of power or lust for power that these things are done. It is because they have got a practical job to carry out and they know that, if they are to do that effectively, the less shackles put upon them the better.

Just as Senator Hayes was anticipated by another Senator, so did Senator Hayes anticipate some thoughts I had in this matter. In this whole question of democracy, we have to be very careful to see that we safeguard the essentials and do not bring down democracy itself through inefficiency of one kind or another. It does tend to make the working inefficient if you put on shackles which hinder the necessary action. The whole purpose in giving these powers to the Executive in a time like this is to enable them to do the things that are necessary. They are of course fallible: they can make mistakes; but there are the two Houses of the Oireachtas to watch them. Particularly, there is the Dáil, which can watch them from day to day in their executive actions. It can hold them to account and, if they do something which the majority of the directly elected representatives of the people believe is wrong, they can be dismissed. As time goes on, as the functions of government become more and more complex, and as the State touches the life of the individual at more points, we must be very careful to see that we give the Executive the necessary freedom to be effective, whilst at the same time maintaining the power of dismissing them.

We can do that. One of the values of our particular form of government is that the Executive can be dismissed by a majority of the representatives of the people for inefficiency at any particular time. I am a realist and I know that that is not an easy thing to do; that Executives are generally supported by a Party and that a Party will be very loth to dismiss the Executive unless there is something very grievous indeed in their conduct. That is, of course, one of the difficulties that lie in the way of that power of immediate dismissal of an Executive which might otherwise be called for.

However, I cannot see that there is any real value in this Bill. There are a host of instruments that you will all agree should not be called for. It is proposed to leave it to seven people to do that. Very well. If there is a necessity for dealing with any of these particular matters, that can be done at present by two Senators. It is true you cannot annul directly by your vote, so to speak, a particular instrument. But you can, by your vote, indicate clearly that it is a matter upon which there is such strong public disagreement that any Minister or any Government would have to take very serious note of it. I do not know of any case that has been brought forward. There were a few Orders of that sort—I remember one, I think 187 was the number of it—on which there was a considerable amount of public discussion. These were all discussed just as fully as they would be under any measure of this kind.

One of the results of my examination was to ease my own mind to a considerable extent, because I found that, where any particular instrument would have the effect of repealing or altering legislation, it invariably was in the class in regard to which the two Houses have power of annulment. I tried to have that examined carefully, and so far we have been able to get no instance of a contrary nature. In fact, I was informed by the draftsman that he would not dream of drafting an instrument which would have the effect of altering or repealing legislation without its being covered by a Government Order. That is there. The thing that affected me most was this power of, so to speak, repealing and altering existing legislation which had been passed with all the care that is exercised in the passing of legislation.

That is a great safeguard. You have that. It is no use arguing, as Senator Kingsmill Moore argued, that you cannot anticipate; that when you see a Government Order giving power to a Minister to do so-and-so, you cannot anticipate what further instrument would come under that. It seems to me you might as well say when legislation is passed that you cannot anticipate all the particular administrative or executive acts that will follow in consequence. You cannot legislate for particular things; you can only legislate for general things. As to the case that was brought up, by some extraordinary accident that one was not presented. Most of these Orders are presented to the two Houses as a matter of routine. They are nearly all presented. By some extraordinary happening I believe that one was not. I believe that one of the reasons was because it was covered very explicitly by a Government Order. As it had been so explicitly covered, it was felt that it was not one of general application which would come under that procedure. I believe it was some consideration of that sort. I do not know whether it was considered very fully. I tried to find out how it was that that particular one slipped. I believe it was not presented.

I think that we cannot have it both ways at the present time; in other words, we cannot have the ordinary checks and lengthy debates that we would have under the ordinary barriers to executive action. We cannot have that at present. Otherwise the community would suffer. You want to have the greatest amount of flexibility on the part of the Executive. You will have, at least in the emergency, to say to them: "All right, we will give you this power because there is a serious situation which has to be dealt with. You will have to act quickly on many occasions. We will give you this power, but, if you do anything wrong, we will hold you responsible and kick you out, if we can." There is no other way in which you can manage it. You have that power at present, because two Senators can bring up these matters for discussion just as well as seven could. I do not want to say that I think you could not have vexatious action by a group. We all know such a thing is possible. We all like to say as complimentary things as we can about ourselves and organisations and institutions.

But we are all realists and we know that there can be organised opposition and organised obstruction for certain reasons under certain conditions. I will admit that, in times of crisis such as this, as a Government we certainly cannot complain that we have not got from both Houses the utmost consideration in carrying out our work. We have. I have to say that but, at the same time, what is the use of putting temptation unnecessarily in people's way? If there is any particular matter that needs to be ventilated, there is a way for doing that. My view generally about this is that I understand the frame of mind of those who brought forward the Bill and the attitude of those who support it, but, on the other hand, from the point of view of trying not to add a fifth wheel to the coach and not putting any unnecessary barriers in the way of executive action, I think that the Seanad would be well advised to drop the Bill at this stage. I do not believe that, on the Committee Stage, you can do anything which would make it worth spending further time upon it. Therefore I would ask the Seanad not to pass it.

I presume, as it is now after nine o'clock, that the debate will be adjourned. When is it proposed to resume it?

Could we not take steps towards concluding the debate by allowing Senator Kingsmill Moore to wind up the discussion? If the Bill is not to be divided on, we could finish it to-night.

Could we not finish it now?

That is a matter for the House.

Of course, if it is to be divided on, it must go over until to-morrow. If it is not, we could conclude now. Is not that the position, if the House agrees?

Yes, if the House agrees.

Is it not possible to get agreement to finish to-night?

We will be meeting to-morrow anyway.

That is so.

Very good then.

I have appointments of various kinds to-morrow. It would be very difficult for me to come here between 3 o'clock and 5 o'clock to-morrow.

It is not necessary that the Taoiseach should be here.

I do not think that it will be necessary for the Taoiseach to be in attendance to-morrow. We have heard his views.

I do not think that it would be necessary for the Taoiseach to come here again, but I cannot see why we should not finish the debate to-night. It would be only a matter of minutes.

If it is proposed to divide on the motion, we cannot finish to-night.

Debate on the Second Stage adjourned until to-morrow.