Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Thursday, 23 Mar 1944

Vol. 28 No. 16

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

Question again proposed: "That the Bill be now read a Second Time."

This Bill has had an unusual history. There was a debate on its First Reading which I hope will not be treated as a precedent and which I hope will not occur again. There was a very inconclusive debate, highly controversial, on its Second Reading which is now being continued, possibly coming to an end. Before I come to deal with the Bill on its merits I want to discuss this general background of delegated legislation. It is a growth, I think an unhealthy growth, which has manifested itself during the last dozen years or so in more countries than one. In England it attracted the severe condemnation of many people, including the late Lord Chief Justice, Lord Hewart, who exposed its evils in his book The New Despotism. It has become a leading question in England within the last month or so because of certain proposals by the British Home Secretary, Mr. Herbert Morrison, that this delegated legislation which was made as a war-time emergency measure should be continued well into the post-war period and that Parliament's duty should be restricted merely to a general outline of legislation. Noticeably in England that has attracted the denunciation of members of all Parties, members of Mr. Morrison's own Party, the Labour Party, the Liberal Party and the Conservative Party. I think it is unlikely to make any great headway there because it is a deprivation of the essential rights of Parliament. Here is a passage written by Sir Lynden Macassey, the doyen of the Parliamentary Bar:

"Government Bills are forced through Parliament under the pressure of the Government Whips; there is little time for the discussion of their provisions either in the House or in Committee. Legislation is passed in the most general terms and left to some Government Department to apply as it thinks fit under machinery or rules to be made by it; the Cabinet is, therefore, in a position, through its member at the head of a Government Department, to embark on a particular policy which has never in any detail been discussed in Parliament or communicated to the public. If the action of the Department is challenged in the House, the Government can say, as has been done, that the action of the Department is fully within the powers conferred upon it by the Legislature."

The same thing has happened here before the war began. Indeed, the increase in the number of Statutory Orders is quite remarkable. In 1931, which was the last year of Mr. Cosgrave's Administration, the number of such Orders was 89.

In 1935 the number had grown to 684. That is an astonishing increase in this delegated legislation, which is not made by us but in Civil Service offices. Hitherto there has been the negative power of annulment. The Orders to which I am referring, the pre-war Orders, were laid on the Table of the House and a motion for annulment could be tabled within 21 days. Here is another quotation from the two authors of A Register of Administrative Law in Saorstát Eireann, one of whom is now a judge:—

"The Oireachtas, accepting the view that its laws should in the main be statements of principle, has shown a notable tendency to delegate the detailed elaboration and the practical application of its enactments. Legislation over a very wide area of civic activities has accordingly been reinforced by administrative directions of the most varied kind and an extensive body of subsidiary law has grown up in the 12 years under review, far greater in volume than the body of law directly enacted by the Oireachtas."

There is no doubt whatever that the Oireachtas never accepted the view that its law should be in the main statements of principle. What has happened is that this insidious development has come upon us almost unawares. Before coming to the Bill I want to state some first principles which seem to be important. There was much talk of a somewhat vague kind in the debate, so far, of the three main parts of one machine—Parliament, the Government and the Civil Service. These are three parts of the democratic machine with differentiated functions. Take, firstly, the Government. The Government decides policy. Within the terms of its mandate, it brings proposals for legislation before Parliament. That legislation is prepared by the Civil Service, which has nothing to do with policy. It is the function of Parliament to scrutinise these proposals for legislation with a critical eye and to amend them in so far as they seem to need amendment. If one of the three parts of the great democratic machine fails to function adequately or if one of those parts attempts to discharge the functions proper to another part of the machine, the result is a breakdown in the democratic system. I suggest that that is exactly what is happening here.

I have said before, and I say again, that what is growing up in this country is a highly centralised government of a totalitarian kind. Both in regard to local authorities and in regard to Parliament, power is more and more being arrogated by the Government of the day, plus the bureaucracy. That, I think, is highly dangerous and it is our duty to draw attention to that danger before it wrecks the machine.

The only other quotation which I propose to make is a short one. The wording of it is, I think, more important than anything I myself am likely to say this evening. The writer is Lord Welby who, for many years, was head of the Civil Service in London and, at that time, completely silent, as civil servants should be. After his retirement, he wrote:—

"It is a great mistake to assume that the strength of a government is increased by adding to its powers because additional powers always impose additional duties. There are tasks which only a central government can perform. To enable it to discharge those tasks, it is wise to devolve on local authorities all the functions you can—not only those that local authorities can perform as well but even those that they cannot perform quite so well but somehow or other. The onus probandi should always rest with the centraliser.”

I say on the Second Reading of this Bill on which I am speaking that the onus probandi rests on the centraliser. But the onus probandi has been thrown back on us by the Government. I say “No.” The onus of proof rests with you, as you are the people who are depriving Parliament of its proper legislative functions. There are instances of that, I am sorry to say. There are instances of Parliament being regarded by the Government in, shall I say, a somewhat austere manner, a manner which suggests that they do not wish to share with us the function of legislation. We had an example of that some time ago over the Slaughter of Animals Order. A case was made here but it was not listened to. The Minister for Local Government came in here, delivered a stentorian tirade and immediately left the House. There was no spirit of give or take, no deference to the views of the House in any respect whatsoever——

The Senator must admit that, to his knowledge, the Minister for Local Government was engaged in the other House and had to leave immediately.

Both Houses have their rights. We had this question out a long time ago before the Senator came here. If a Minister has duties in one House, he can delegate his duties in the other House to somebody else. This House has its rights as a legislative chamber and should preserve its dignity as such. More recently than that—only a short time ago—we had instances of the same thing. On the First Reading of this Bill the Head of the Government came in and said:

"I thought it was only right to prevent a waste of time, so to speak, of myself or whatever Minister might be concerned."

The Head of the Government is always courteous and that was not meant in any discourteous way, but it does disclose the subconscious attitude of the Government to Parliament. It never can be considered a waste of a Minister's time to come to a House and speak on a Bill to which that House has seen fit to give a First Reading. The trouble is that, after 12 years of power, this Government, like all Governments, has become somewhat despotic and overweening. These are not my words. There were used by a great philosopher, John Stuart Mill. He said:

"All Governments become in time despotic and overweening if they continue long enough in power."

I say that Parliament itself has become supine and negligent. I have criticised the Government; I am now criticising ourselves. Neither in the Dáil nor here is there a sturdy, back-bench element which is prepared to stand up to the Government on points even of detail when it is convinced that the Government is wrong. A sturdy, back-bench element is one of the preexistent conditions of a flourishing democracy.

Now, I come to the third element in the machine—the Civil Service. There is an old saying in the Civil Service that "dog does not eat dog." I was a civil servant long enough to know the extraordinarily valuable work the Civil Service does in its proper sphere, but civil servants have a special point of view. Every professional man has a special point of view in life. At a time when I was a young civil servant, one of my jobs was to compile data that could be embodied in answers to Parliamentary questions.

I remember the indignation I felt on being taken off my particular work in order to compile this useless stuff as I then thought it to be. I used to curse under my breath the Members of Parliament who were asking these questions and wasting my time. Of course, circumstances alter cases and that is not my point of view now.

When I was here a short time as an official of this House, a civil servant whom I know very well—he is still with us—was kept waiting a long time for his Bill to come on and he said to me rather petulantly: "I wish the Dáil and Seanad never met." That again is a point of view, but what I want to put forward now is that the Civil Service itself is changing in an important respect. I have noticed for the last five or six years or more that leading civil servants are concerning themselves with policy. That is a very regrettable and a very dangerous tendency. The most recent instance I noticed of it concerns one of our most able civil servants, one of the most genial of men, an indispensable man in his own sphere, and a friend of mine, who at a public dinner—he undoubtedly had the Minister's approval for this—announced Government policy, post-war policy on the question of shipping. That, I think, is an example of a tendency which I suggest is unwise, because one can easily see that, if another Government should come in with a different policy in regard to post-war shipping, the civil servant, having disclosed his own views, will find the circumstances rather difficult. Therefore, it is a matter for consideration that we should try here not only to discharge our own functions in this machine, but to see that both the Government and the Civil Service discharge theirs.

With that rather long introduction I come to the Bill itself. I have no responsibility for the Bill, although I am supporting it. I did not see it before it was circulated nor was I spoken to about it. I am not out to make a case for the Bill that does not exist, not out to make a useless case for the Bill, nor an irrelevant case, though I do suggest that everybody who has spoken against this Bill so far has made an irrelevant case against the Bill. They have been making a case not against this Bill but against some hypothetical Bill which they have preconceived.

I make a distinction between Orders in posse and Orders in esse. I am sorry for using these Latin terms, but I cannot avoid it. Senator Kingsmill Moore used the simile of the cow and calf. Somehow, that does not commend itself to me, and I think Senator O'Donovan pointed out that it reminds one of the slaughter of animals. An Order made by the Government is an Order, in posse. That is laid on the Table. Pursuant to that the Orders in esse are made by a Minister or by some official. I think I am right in that. This Bill concerns only Orders amending the Statute Law. I forgot to say—and I should have said it—that I am treating the Bill as if it incorporated in Committee the amendments which the proposer of the Bill said he was willing to move. I think I am entitled to do that as they will be duly incorporated if the Bill goes to Committee Stage. The Bill concerns only the Orders amending the Statute Law; only the Orders in esse—that is when the thing is actually done. There is a very good reason why Orders in posse, being merely potential, should not be subjected by us to motions for annulment because we cannot tell until the actual Order in esse is made precisely what is going to be done; therefore, I think that these Orders in esse should come within the ambit of the Bill as it is here proposed that it shall.

The Bill does not apply to any but published Orders, and therefore any suggestion that a breach of confidence would be committed by requiring the tabling of such Orders is incorrect. Another point is that the mover has accepted the proposal that there shall be a Ministerial veto in tabling a motion for annulment in a case where the public safety would be infringed in any way. Lastly, nothing can be done at all unless seven members of either House sign a requisition. Senator Quirke suggested that any seven people—foolish people in this House— could be got to do that to embarrass the Government. I am sorry the Senator is not here, and I will say no more about that except that it is palpably incorrect. If the Bill is passed with these amendments which I have mentioned, what would be the result? Certainly there would be no annulment of one of these Orders, because the Government which makes the Order has a majority in both Houses. For myself, I think that even if the Government had not got that majority there would be no danger whatever.

During the 14 years when the old Seanad was in existence only five motions to annual a Ministerial Order were tabled, three by Senator Sir John Keane, and two by Senator Thomas Johnson. Senator Sir John Keane withdrew his after constructive, interesting and educative discussions. Senator Johnson pressed his to a division and only the Labour Party voted with them. Therefore there is no real possibility that the Government would be incommoded in this House by having one of these Statutory Rules or Orders annulled here. What would happen is that there would be discussion. Parliament by its very name implies a place for discussion. If seven people think that an amendment of the existing statutory law is of such moment that it should be discussed in this House, then I say it ought to be discussed here. A free discussion will help to educate us, myself included, and by its publication in the Press it will help to educate public opinion. It will be achieving something. Whether one feels in favour of an Order or against it, it is at any rate a matter for discussion, and that is the case for the Bill.

Sitting suspended at 6 p.m. and resumed at 7 p.m.

In the part of my speech delivered before the adjournment I had briefly reviewed the growth of emergency legislation, I had examined the interaction of the three parts of the Governmental machine, and then I stated my reasons for supporting the Second Reading of this Bill. I am now coming to the last part, and that is to examine the criticisms made on the First and Second Stage of the principle of the Bill. I have carefully read every word of these debates, but my task is not a difficult one because, as I hinted before, very little was said that was directed to this Bill at all. A great deal was said which was directed to some Bill envisaged by the speakers, but it did not happen to be this Bill. It is not surprising, therefore, that most of the comment and criticism offered was inept and irrelevant—with one exception, and that was the speech made by the Head of the Government in person. Even there, I had the impression that his criticism was not really directed to the provisions of this measure.

Now, running through what he said on Second Reading, there was a curious parallelism between his sentiments now on this Bill and his sentiments on his Bill to abolish the Seanad. To a person like myself, who is reasonably familiar with his speeches that were made at that time, the parallel was indeed astonishing. He said, formerly, speaking of Second Chambers, and propounding the famous dilemma of the Abbé Sieyes:

"It is either of the same complexion as the Lower House, in which case it is not an effective check, or it is opposed to the majority in the Lower House, in which case it is mischievous."

He now says of this Bill:

"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."

The answer to that is that there can be no possible harm in the public discussion of Orders made with the object of amending the statutory law of this country, enacted both in the Dáil and here. Speaking on a former occasion of Second Chambers, he said:—

"It is for those who say that hobble skirts, which restrict natural movement, should be worn, to show why they should be worn; in other words, to show why these restrictions, and this unnecessary complication in the legislative machinery should be there."

Now, of this Bill he says:—

"It does tend to make the working inefficient if you put on shackles which hinder the necessary action."

Now, there is no shackle whatever being put on necessary action by this Bill. All that this Bill does—and I must reiterate it—is to permit discussion on statutory Orders, ex hypothess, on a matter of considerable importance. For my third and last parallel, I would point out that the Taoiseach, speaking about the Seanad, said:—

"We hear talk of a dictatorship— one-man rule and so on—as if everybody in this Assembly of 153 individuals had not a voice, and as if everybody here was inanimate and took no part in upholding the views he believed in."

Of this Bill, he now says:—

"The Dáil can hold the Government 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."

That is, undoubtedly, true but, in the existing circumstances of the last ten years, can you honestly say that it is true in practice? Can you honestly say that, at any time between two general elections, there is a sufficiently strong, independent back bench and back-boned group in the Dáil capable of saying freely what they think and turning the Government out and standing again at an election as Independent Fianna Fáil candidates? You know that that does not happen, but it does happen in thoroughly democratic countries.

The Head of the Government said further:—

"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."

Now, Sir, he said that on the First Stage of this Bill, before, presumably, he saw the Bill. Before I could accept the view of the Civil Service that this Bill is impracticable I would have to know the terms of reference to the Departments. The terms of reference could not have had this Bill in mind because it had not been printed and circulated. Therefore, I say, that when he tells us that the Civil Service unanimously agreed that it was impracticable, it has no application to this Bill and it need not detain us for a moment. Lastly, he asserted that this sort of change would make it impossible for the Government to act quickly, when it was necessary, in view of the war, for the Government to act quickly. That is incorrect.

When a statutory rule in esse is made, it is law from the time it is signed and promulgated. Nothing can prevent it from continuing to be law except the subsequent purely theoretical annulment, either here or in the Dáil, suggested by this Bill. Therefore, the rapidity or otherwise of Government action is completely unaffected by it.

I said in the beginning that I was not out to make a case for this Bill where a case did not exist. I freely grant that there are two other ways by which the objects envisaged by the mover of this Bill could be achieved. One, would be a special motion condemning a particular Order it was desired to condemn and the other, the still more drastic motion of censure of the Government. Those would do but they are not the right and decorous way of doing what it is desired to do. To my mind, this is the best way. The Labour Party is not here in any strength, but I was glad to notice that members of the Party, on the First Stage, spoke strongly about preserving essential democratic liberties and doing things in a Parliamentary way.

I would ask one question of the Government, but there is no one here to answer it. If this Bill is withdrawn or rejected, how long is it proposed to continue the Act of 1939? Is there a firm intention to give back to Parliament the liberties it surrendered in the war period as soon as the war ends, because one's experience is that the tendency is for restrictions to continue? That would be detrimental to the interests of the country if it happened.

I have a proposal to make, although it is not mine. It originated years ago with one of the best parliamentarians we ever had in the Dáil or here, Senator Thomas Johnson. Senator Johnson always wished to have a joint committee of both Houses, or an all-Party committee of one House, whose duty it would be to scrutinise the Orders which form the whole corpus of delegated legislation and, acting as an all-Party group, take appropriate action in bringing them before the notice of the House for discussion. I say that if we cannot get a joint committee, an all-Party committee, possibly the Fine Gael Party, with Labour and Independents, if Fianna Fáil does not feel able to join, should form a small voluntary group to scrutinise these Orders, and where necessary bring them before the notice of the House in due time for discussion and public enlightenment.

I want to disassociate myself completely from one statement made by the last speaker. He complained rather bitterly, so bitterly in fact that Senator Hawkins was moved to interject that the Minister for Local Government had not on the occasion of the real cow-and-calf debate sent his representative here to represent him in this House. I only just want to say that, judging by the proceedings to-day, I think the Minister is not to be reprimanded for that neglect but highly commended. However, to get on to the present Bill, we heard a great deal of comment about a Bill that is not before the House. We have heard very little comment from the opposite benches on the Bill before the House. Senator Quirke led off the opposition to the Bill and, as far as I could make out, the sum total of his objection was that there were seven fools in the House.

Only seven?

I do not know whether the Senator wished us to take him seriously but if he did I would remind him of the old saying that "it takes one fool to know another." Senator O'Donnell followed Senator Quirke and I had the greatest difficulty when I was listening to him in understanding what his line of argument was. I must say, speaking now after having read his argument as well as having listened to it, I find myself in still more haze. I am not quite clear why he is opposing the Bill except it is that the Senator who introduced it was prepared to accept the point of view of the principal Senator who opposed it that there should be a provision about privacy. All that is merely by the way. What I really wanted to say—and I speak so that my protest may go on the records of the House—is that we seem to approach every proposition that comes before us these days in the light that the Government can do no wrong. Any person, any Government, any body of officials, any person in any walk of life, can always make mistakes and it is up to us here to ensure that there will be such a scheme of machinery that when a mistake is made, that mistake can be remedied with the least possible harm to anybody.

I am talking of pure bona fide slips, bona fide mistakes that might happen at any time. If an Order of the type discussed here, an Order amending the statute law, is made on a mistaken view, at the present time it can only be upset by what amounts to a vote of censure on the Government. If this Bill is passed, that mistake can be rectified in a far more dignified way, without challenging the general support of the Government.

I find myself sometimes rather wondering whether the type of speech that I have heard from the other side in the past few months is not really meant to cover up the fact that there is no argument behind it. I wonder do all those people who say on all and every possible occasion that you must not disturb the Government really mean it or are they using it to cover up the fact that they have got no argument because loud speaking—and I am one of the worst offenders in that respect myself—and positive assertion do not make up for lack of argument? I am afraid that in some of our recent debates we have tried to pretend that it does. There can be no argument against one principle and that is that, the more democratic powers are kept in the Oireachtas, the better it will be for the future of this country. There is no argument either against the principle that, in time of emergency, these democratic powers must sufficiently—and I stress the word "sufficiently"—be handed over to the Executive to ensure that it is able to act in a time of crisis. If there was anything in the Bill which, for a moment, prevented the Executive from acting in a time of crisis I would not be speaking in its favour, and I venture to suggest that the Bill would not have been introduced, but there is not. It purely suggests a method of trying to right a mistake, if ever a mistaken Order should be made.

I just want to make one final comment. An Taoiseach, when he was speaking, referred to the Slaughter of Animals Order and he said that:—

"As to the case that was brought up, by some extraordinary accident that one was not presented."

Unfortunately, that was not the case made by the Minister on that occasion. The case made by him was that he need not present it. I would suggest that if the general policy is as stated by An Taoiseach—and I feel sure it is —it would have been wiser for the Minister to have adopted a different line of defence on that occasion.

The Senator who has just resumed his seat made an accusation which demands a reply and I rise to make that reply. Senator Sweetman alleges that Senators who have spoken against this Bill are actuated by a desire to place the Government above, beyond and supreme to both Houses of the Oireachtas. That is an unfair, an unreal and an untrue statement. I am quite sure that each Senator who has spoken in opposition to the Bill is conscious of the meaning of Article 15 of the Constitution where in it is laid down that the sole authority to make laws for the people of this country is vested in both Houses of the Oireachtas and that no other legislative authority in this land has a right to make laws for the people of this country.

I do not want to be discourteous to the Senator as he was so courteous to me but I did not state that.

That is the inference I drew from the Senator's speech.

So long as it is only an inference, I do not mind.

The authority therefore to make laws is vested in both Houses of the Oireachtas and not in the Government. There is no intention on the part of those who have spoken against this Bill to place the Government above and beyond either House of the Oireachtas. This Bill, I believe, is an honest attempt to give effect to Article 15 of the Constitution, notwithstanding the passage into law of the Emergency Powers Act, 1939. In that Act both Houses of the Oireachtas clothed the Government with authority to legislate by Order and whatever causes operated to make the Oireachtas do that are with us to-day in a more aggravated form.

It is because we realise that these causes are with us and that the liberty and authority with which we clothed the Government, are more necessary now than then, that we are opposed to doing anything that would hamper the speed of the Government in taking action to deal with an emergency. It is quite a simple thing to say that this Bill only requires the tabling of Orders as published. Senator O'Sullivan said that there can be no disclosure of confidences because they are published Orders. On the face of it that appears to be correct but when you come to examine it what do you find? The Minister may make an Order on evidence of a confidential character. If he is challenged here in the House he is not in a position to disclose that information, but it would be necessary to do so in order to justify himself before the House. A certain section of the House would immediately blame him because he made the Order and was not in a position to disclose the information. Whilst I do say these things in opposition to the Bill I am in agreement with those who say that legislation by Order is reaching dangerous proportions.

But it has not arisen since the emergency. It is a much older growth. Examining the records in our House here a short time ago I found that in the year preceding the outbreak of the war, 1939, we passed through both Houses 38 public Statutes. In 27 of these we had enabling provisions, regulations or Orders. In addition we have passed eight amending Acts and in the eight amending Acts we had enabling provisions, regulations and Orders. So in normal times approximately 40 per cent. of our legislation had within it enabling provisions, regulations and Orders. That, of course, is a position that, I am prepared to concede, demands close watching in the post-war period when the emergency has gone by. I say it should receive the closest attention at the hands of both Houses of the Oireachtas because it tends to create a despotism and at least it places a weapon in the hands of those who would assert that our democracy or democratic form of government has become a bureaucracy. I think we can agree upon that. Senator Hayes when this Bill was before the House indicated what I thought was a very reasonable answer to the signatories of this measure, when he said that there was nothing that can be done within this Bill that cannot be at present accomplished through the form of a motion brought before the House. This Bill requires the signatures of seven persons. A motion requires the signature of one. I say to the signatories that the motion will secure the same information. It is open to any Senator if he considers an Order requires examination to table a motion and have it examined. In view of that, I suggest in all sincerity to the Senators whose names are attached to the Bill that having obtained this expression of opinion from the House, and with the knowledge that the same goal can be reached through a motion, they should withdraw the Bill.

I find replying on this Bill a very difficult task. I have no difficulty in replying to the occasional arguments against it which were addressed to the substance of the Bill. I do find myself in an almost insuperable difficulty in replying to at least four-fifths of the speeches against the Bill, because these four-fifths were speeches against a purely imaginary Bill with imaginary clauses which were not before the House and were not in the brain of anybody except those people who, failing to find arguments against the actual Bill, set out to imagine a Bill which they could oppose. We have had a long litany of the evils of things which the Bill does not do does not purport to do, and could not possibly do. Sometimes the objectors credited the Bill with powers which I would regard as almost miraculous. Senator Quirke referred to the Bill as a bridle with which to hamstring the Government. I do not know anything much about horses, and I understand that Senator Quirke knows a great deal, but it must be a very remarkable bridle which is capable of hamstringing a horse. Even An Taoiseach used the highly coloured word "shackle"; and those who did not seek refuge in metaphor whether for expressing, or concealing their thoughts used phrases such as "take power away from the Government," and "interfere with the necessary freedom of the Government." Now what am I to say?

This Bill has been circulated and everybody has at least had an opportunity of reading it, although I am not suggesting that everybody has read it. I endeavoured to explain it on the First Reading, and I endeavoured again on the Second Reading to explain it, but apparently neither the Bill itself nor my explanation of what it can do has been sufficient. I am afraid I have to resort to the only expedient left to me in a nightmare situation, and like the bellman in "The Hunting of the Snark," I suggest that "if I say it three times it is true."

I wish to say this for the third time —that this Bill will not prevent the making of any single Order which the Government or a Minister can make at the present moment, that it will not delay the making of a single Order which the Government or a Minister can make at the present moment, and that it will not invalidate anything that has been done under any Order which the Government or a Minister can make at the present moment. The sum total of the effect of this Bill is that if a Minister acting under a delegated power, makes an Order carelessly or hastily or under a wrong impression there would be provided a constitutional method—I emphasise that phrase—whereby the Order could be subjected to helpful criticism by either House.

Senators have attempted to make much the same argument as that to which I have already referred by a liberal use of words such as "emergency" and "neutrality". Those words with their temporary hypnotic influence have done nothing more than lull the intellect of the House asleep. Everybody knows, and everybody in this House, I imagine, accepts, that an Executive must often act on its own responsibility. I go further than that and say that an Executive must often act illegally. There are occasions when those who are governing must act on their own judgment and responsibility and say: "We must do such and such a thing even though, for the time being, it is admittedly illegal." That has always been so under every system of government of which I know. Whether you have regard to the old Roman method of appointing dictators or the other method by which the laws of the land are sometimes temporarily suspended, that is a necessary provision whatever kind of Government you have.

The way in which that difficulty was met in the past was this: If an Executive Government thought a thing had to be done, they did it and then came to both Houses of their Legislature and said: "We have done a thing which was illegal; we did it because it was necessary; we take responsibility for it and are prepared to show you that it was wise; now, we ask you to pass a Bill of Indemnity." So far as I know, in such circumstances, an Act of Indemnity was always passed. When the present emergency arose, the Government introduced an Emergency Powers Bill which substituted for that an infinitely better provision. They provided, as it were beforehand, an indemnity for anything they did under an Order which they thought it necessary to make so as to deal with the circumstances with which they were confronted. They took these powers to make Orders at once.

They took these powers of suspending the law so as to avoid actually breaking the law. I have nothing but admiration for the clause which you will find in the Emergency Powers Act which provided that the Government might, by Order, do these things, and that any act which was done under such Orders should not be impeachable. But the Government themselves saw the difficulty and, in regard to Orders made with the full responsibility of the Government, considered, presumably, by every member of the Government and signed on behalf of the Government, it was provided that they were to be liable to be brought before either House and annulled if either House disapproved of them. That is not my provision. The provision you will find in the Bill before you does not emanate from my brain. It is the provision which the Government themselves applied to every Emergency Powers Order they made, and all the arguments put forward to-day as to the undesirability of discussion of the reasons for such Orders, as to the possibility of delay and such matters would apply with double force to the original Emergency Powers Act made by the Government which they themselves wittingly and, I think, rightly subjected to scrutiny by both Houses and to possible annulment.

Why, then, is it necessary to have this Bill? Certain Senators said that I was attempting to question the wisdom of those who passed the Emergency Powers Act. I am doing nothing of the sort. I am seeking to give effect to it, because anybody who reads that Act will see that the sub-section giving power to delegate matters to Ministers, who do not have to table their Orders, was perfectly clearly meant for purely executive and administrative matters. It was meant for the kind of things referred to by Senator Quirke—petrol licences, fuel licences. Orders dealing with wages in respect of one firm and so on.

All matters like that were to be delegated to Ministers and, because they were purely minor administrative and executive matters, no provision was made for tabling them. That provision has, in fact, been used in a way which was never contemplated by the people who passed the Emergency Powers Act. If Senators turn to the debate on that measure, they will find that what I say is correct. It is being used because it is convenient to delegate larger powers to Ministers, powers to make Orders suspending or amending the statutes of the land. I am not seeking in any way to question the wisdom of those who passed the Emergency Powers Act. I am seeking, by this Bill, to give effect to their intention and to prevent a clause, meant merely to deal with minor matters of business, from being used in a way which was not intended.

The Bill which is before you seeks to restore the position which was meant to be created by the Emergency Powers Act. It seeks to avoid what has admittedly, I think, been a perversion of the original intention. But it did appear, in the course of the First Reading debate, that there were certain people who, either really or ostensibly, had certain apprehensions as to the way in which the Bill before you might be abused. It is perfectly true that the word "instrument" which you will find in the Bill before you, is given a very wide meaning by the definition section in the Emergency Powers Act and that, technically, it would include licences and matters of that kind. I need hardly say that those were not in my mind and could not, I think, be in the mind of the hypothetical seven Senators who have to sign the request.

In case anybody should feel that it might be abused I at once offered to make an amendment whereby any Order which had not been published, any Order which was thought to be of a confidential nature, or any Order which might reveal anything to do with the private matters of a firm, could be protected from the provisions for tabling and discussion on a certificate of a Minister that it either would be against the safety of the State to discuss it or that it would reveal the private affairs of an individual firm. I do not think these restrictions are necessary. I hardly think that the objections which rendered it desirable to offer to make these provisions were anything more than frivolous or in some cases, slightly factious. I offered to make them and I must say I was somewhat surprised when I had done so to find Senator O'Donnell rebuking me for having offered to do so. I freely offered them because they did not in the least bit interfere with the object of the Bill as I intended it. I offered on the First Reading, and I offer again now to accept an amendment whereby the operation of this Bill will be confined to instruments which purport, on their face, to alter the statute law of the land, because it was in order to have some control over such instruments that the Bill was introduced.

I understand that, even with that provision, the Bill will not be acceptable, but I do want to make it quite clear if Senators are rejecting this Bill that what they are rejecting is merely an effort to allow this House to discuss the suspension or amendment of legislation which it has itself passed. If the House wishes to abrogate their powers, if it wishes, having spent time and trouble in the various stages of an Act, to allow that Act to be swept out of existence by the Order of a single Minister and not to have even the opportunity of making helpful criticism—then it is a matter for the House. I, at least, have put it clearly before them.

Senator Campbell accused me of crying "bogey-bogey." He said that my suggestion that the Minister for Justice might suspend the laws of the land and subject ordinary citizens to military courts, was fantastic. Senator Campbell had not read his Acts. In the 1939 Emergency Powers Act the power to do that was expressly excluded from the scope of the Act. But one year afterwards, in the 1940 Emergency Powers Act, the Government expressly took power to do it and, quite frankly, I can conceive a time when there might be occasions in this country—occasions within the next year, perhaps—when it would be a proper and desirable thing to do. But if it be a proper and desirable thing to do, this measure would not prevent it being done in any respect, would not render the Minister liable to impeachment for anything done under that Act, and surely it is a remarkable thing to say that this House wishes to preclude itself from the possibility of discussing subsequently this desirability.

I pass now from the arguments which, as I say, were so unreal that at times I almost felt I was back with Alice in Wonderland, and if I were to cry the magic words: "You are nothing but a pack of cards" or, perhaps, "You are all a pack of votes" that the whole thing would dissolve and I would find myself back to the realities of the Bill. The realities were touched upon by the Taoiseach and, first of all, by that great realist, Senator Hayes.

There is one argument, an argument which Senator O'Loghlen has repeated, the force of which I have felt very strongly, because it is a real argument. That is the argument that it is unnecessary to pass this Bill, because we can do indirectly what it proposes to give us power to do directly. Senators will observe that the use of that argument by the Taoiseach completely sweeps away all the other arguments that were used against the Bill, because to use that argument is to admit at the beginning that the power to discuss and control legislation is an absolutely necessary thing, and that the only reason for suggesting that the House should not give a Committee Stage to this Bill is because the absolutely necessary provisions of the Bill can be arrived at in practice by another way around. I said in opening the Second Reading that there is, in fact, a hole in our constitutional fabric, that "the north wind may undo it with its sleety whistle through it," that it is a gap to be stopped one way or another. Senator Hayes and the Taoiseach say "There is the danger, but you can stop it with a clout". I say that if that is so why not complete the edifice and stop it with a brick?

Why should we have the elaborate system of bringing up a special motion which certainly may bear the appearance of a vote of censure if we can provide a proper constitutional method, whereby the matter can be brought before either House by way of helpful criticism and in a way which nobody can suggest is in the form of an attack upon or a censure of the Government? My objection to the kind of motion suggested by Senator Hayes is this: it is a motion which, on the face of it, can have no effect. It could have no practical effect in the terms in which it is couched.

Therefore, it must be something in the nature of an expression of disapproval of the Government. If you have machinery provided such as this Bill provides, whereby in the ordinary course of things, the members of any House or of any Party who think that an Order may be improved are enabled almost as a matter of routine to bring it before the House and offer their criticism in a channel that is being provided as part of the Constitution, then, at once, such discussion takes its proper place. It is not given undue importance. It is not an attack upon the Government. It is not a special motion, out of the ordinary run of things, a motion which could have no effect. It is merely putting into effect part of the necessary machinery of Government.

That, I think, is the answer to the one argument which has pressed very strongly upon me, the argument that this Bill may in some respects be unnecessary because we can do the same thing by a different method. I ask you to make it a constitutional method. I ask you not to put the members of either House in the position of having to table a special kind of motion.

There have been at least two Orders, in the short time since I have been in the House, that I thought required discussion. I avoided putting down a special motion —I waited for the Estimate in the case of one of them— because I did not wish to give a discussion, in which criticism might be embodied, the appearance of an attack. If you pass this Bill, you will always enable us to help whatever Government is in power by giving them an opportunity of mending their hands. At the present moment, you cannot do that, except by way of a special motion.

I think I have dealt with all the arguments. I believe that this is a good Bill. I do not believe it requires amendments, although I have offered to make various amendments in order to meet what I think are the rather fanciful suggestions that have been put forward. I ask you to treat this Bill for what I believe it to be: a perfectly adequate solution of a difficult problem which has been admitted by the Taoiseach. It enables the Government to act at once. It enables the Government to make any Orders they like, despite the existing law. It enables the Government to do all this with complete safety, because they never can be accused in respect of anything done under that Order, of having acted illegally; but it does preserve to this House the power of criticism, of helpful criticism, and, finally, the power of saying, after due consideration, and without in any way interfering with what has been done already, that they think the Order should cease to be valid in its existing form. I believe that this is a good Bill, and I ask you to vote for it.

Question put and declared negatived.

For the information of Senators I may say that the next meeting of the Seanad will, probably, be on Wednesday, 19th April. But I suggest that we adjourn sine die. That will leave the date open.

The Seanad adjourned at 8.05 p.m. sine die.