I move that this Bill be recommitted because, I understand, under Standing Order 80, unless the whole Bill is recommitted it is not possible for me to ask that Section 11 be recommitted, seeing that there are no amendments. It is the only section on which I wish to raise one point that could be dealt with adequately on the Report Stage later by way of amendment. I ask the House to agree that the whole Bill should be recommitted, on the understanding that I am not going to raise anything except on Section 11, which was a section on which we adjourned reconsideration.
Johnstown Castle Agricultural College Bill, 1945—Recommittal and Final Stages.
The other sections can be taken formally.
Ordered: "That the Bill be recommitted."
Sections 1 to 10 agreed to.
SECTION 11.
Question proposed: "That Section 11 stand part of the Bill."
The Minister will explain the position as I put my points at the last meeting.
When dealing with the Committee Stage of this Bill on July 27th, as certain Senators are aware, there was some discussion as to whether reference of (c) of the agreement in Section 11 was not ambiguous, and Senators were inclined to think that there should be some amendment moved to say whether it should be to clause (c) of Section 10 of the agreement or not. Reference to clause (c) occurs in two sections, in Section 2 (a) and in Section 11. The point did not arise in Section 2; it did arise on Section 11. Section 2 authorises the acceptance of the gift of Johnstown Castle, and deals with approval of the agreement and execution of the conveyance. Section 11 deals with expenses in connection with the administration of the Act out of moneys provided by the Oireachtas. I should say first of all, that this section would, of course, have been sufficient if there was no reference at all to clause (c) of the agreement. The reference is only made for information and clarification, owing to the importance of that particular clause in the agreement. On that occasion I was asked why clause (d) was not mentioned as well as (c), as it appeared that the amount of money involved in (d) was more than in (c). The explanation is that all the expenditure under (d) has been already dealt with in estimates that were before the Dáil; to a great extent in the Estimate for Public Works and, to some extent, in the Estimate for the Department of Agriculture. It would be, therefore, wrong to ask the Oireachtás to agree to something that had been already agreed to.
Coming to clause (c), there is only one clause (c) in the agreement. There is a clause (c) in the inventory marked "A", but that inventory is dealt with in clause (c) under the heading of "No. 10 of the Agreement". Therefore, there could be no ambiguity with regard to the clause (c) dealt with here. If Senators will examine the agreement, which is set out in the Bill, they will find that it starts off with the usual preliminaries to an agreement, "whereas so-and-so", and that is followed up to No. 9. Then we start again, "whereas so-and-so", and that is where the mistake arose. No. 10 was put in and should never have been put in. We cannot amend the agreement now, because it was drawn up in consultation between the two parties. But only if the No. 10 in the agreement had been omitted at the time the agreement was made, there would be no further trouble.
Does the Minister mean the whole of No. 10?
Just No. 10. There should be no number there at all, because we are starting on a new clause of the agreement, and we say, "whereas it is desirable..." The first "whereas" covers nine different points, and the next one should not have been No. 10, but should have had no number, followed by the letters (a), (b) and (c), down to (i). As I say, it was an oversight, not a very serious error, to have a number there at all. If any amendment was being made, we should go back with the agreement and ask the people to re-sign it with No. 10 omitted.
As it stands, I submit there is no possible ground for ambiguity of any kind. As I say, the mistake was really made when the agreement was signed, and, on the whole, it is better to leave things as they are. That is the case, I submit, for leaving things as they are, and I am sorry I was not in a position to explain where the error first arose when this matter came up on the 27th July.
I respectfully say that I am not satisfied with what the Minister has stated. This agreement contains the following proviso at the end:
"Provided always that this agreement is conditional upon the acceptance of the said intended gift by the Oireachtas and the enactment of legislation to give effect to same within four months from the date hereof as if no Act shall have been passed for the purpose aforesaid within such period (or such further period as the settlor may in writing agree to) these presents and everything herein contained shall be void and of no effect."
This is a Bill to give effect to the agreement, so you must take the agreement as you find it, and adapt your legislation accordingly. In the agreement you have clause 10. Let it be called paragraph 10 if necessary, so that it will read as follows:—
"Whereas it is desirable that provision should be made in respect of certain matters incidental to the said gift which cannot be effected without statutory authority but the settlor and the said Maurice Victor Lakin do not desire and it is not the intention and purpose of this agreement that the intended gift should be in any way conditional upon the matters hereinafter referred to save and except the matters specified in clauses (a), (b) and (c) hereof."
This clause (c), of paragraph 10, is the subject of the difficulty. I respectfully say that it will be necessary to amend Section 2 and Section 11 so as to provide that the clause referred to in both sections shall be clause (c) of paragraph 10 of the agreement contained in the Schedule to the Bill. I say it is not sufficient to leave matters as they stand because there is no clause (c). In fact when you read the agreement you see that it is clause (c) of paragraph 10.
One other point, when I am dealing with this—the agreement provides that legislation should be enacted within four months from the date of the agreement to give effect to it. The agreement is dated December 28th, 1944, so that the four months expired on April 28th, 1945. The proviso does contain provision for a further period as agreed to by the settlor in writing. We have no knowledge that the settlor agreed to any extension beyond four months.
I think the Minister gave us an assurance on the last occasion that he had.
I suggest that that should be incorporated in the Bill because it is an extension of the agreement. You are not giving legislative effect to the agreement unless you have the authority in writing also incorporated in the Act. In these two respects, it should be amended before it leaves this House.
I support Senator Ryan. So far as the first point is concerned, he has said exactly what I had intended to say, with this exception that I do not think the agreement is defective. I do not think it is a mistake putting in No. 10 there. It is one of the clauses which were set out at the top of page 5 as agreed to and declared between the parties. The drafting of the agreement as it was in the initial instance is perfect. So far as whether there could be doubt is concerned, it could not possibly alter the validity of the Bill, and it would make it quite a clear Bill beyond all question of doubt if the figure 10 were inserted before the reference to clause (c). If you do not do that, I suggest that it would be creating the same position as if we enacted a Bill of one section divided into various sub-sections and referred in sub-section (10) to sub-section (1) of the same section. That would be slovenly drafting and might give rise to doubts. I would press the Minister very strongly to agree to insert the figure 10 before the letter (c) to put the matter beyond all doubt in this case. On the other point, I am afraid I am not sufficiently qualified to give an opinion.
I am not a lawyer but it seems to me that the two lawyer Senators have made the position perfectly clear. What is the objection to putting No. 10 in? The Seanad is meeting and the Dáil is in session and there would be no delay about it. I presume that the Minister has some reasons to show that harm would be done by putting in No. 10. To my mind, even taking his case, he did not suggest that it would not be as clear with No. 10 inserted. Therefore we ought to do it, unless it can be shown that harm would be done. I am not competent to express an opinion on the other point made by Senator Ryan from a legal point of view, but from a common-sense point of view—I do not say that law is not always common sense—and from the point of view of record, it is desirable that the Bill should show it. It would probably save quite a lot of trouble.
With regard to the extension of the time of the agreement before legislation might be passed, I did say that the six months' extension was agreed to by both parties. That extension would give until the 28th October, but necessary documents have to be signed when this Bill is enacted. The Bill must become an Act before some of these necessary things can be done.
The Bill will be in ample time if it is dealt with in the Oireachtas this week. I think that both sides are arguing a very trivial matter. If an error was made in the drawing up of the agreement by putting in the figure 10 where it should not have been put in, we should not follow that error and put the figure in the Bill, especially as there is no possibility of ambiguity. As I have pointed out, there is no letter (c) in the agreement other than the (c) with which we are dealing. The only other (c) is in the inventory, which is only an addendum to the agreement, dealt with under the said section (c) in the agreement itself. A slight error was admittedly made in the agreement and the legal men advising me say that we should not repeat that error by carrying it into the Bill.
Senator Sweetman said that, if there were no numbers, it would look rather bad, even if there were no ambiguity, to put in the letter (c) without mention of the section. I do not think so. If Senators will examine the agreement, they will find that the first part starts off with the words "Memorandum of agreement made the 28th day of December, One Thousand Nine Hundred and Forty-four". Those words are followed by clauses numbered 1 to 9. Those constitute the agreement made between the Minister for Agriculture and the donors of the property. Then the agreement starts off again with the word "Whereas". The part of the agreement which follows provides that the authority of the Oireachtas will be obtained for the making of the agreement in so far as that authority is necessary. Those are two very distinct things. In the first instance, we have the agreement to transfer the property on certain conditions. In the second instance, we have an undertaking to get the authority of the Oireachtas to do what it is necessary to do. The agreement is to be null and void unless the authority of the Oireachtas is obtained for the doing of the matters set out in paragraphs (a), (b) and (c). But if the Oireachtas were to turn down paragraphs (d) to (i) it would not invalidate the agreement. It is plain that the agreement should never have contained that number 10. The agreement is in two parts and the number 10 was wrongly inserted.
But it is there, whether it is wrong or not.
It has been put there in error and what Senators ask me to do is to stultify the Oireachtas by putting the error in the Bill as well.
No.
Is not the agreement the predominant article in the Bill?
It is a very important part of it. If the second part of the agreement had been called Part II, it would be a different matter. We should have to put in "clause (c) of Part II," but it was not inserted as Part II.
If it had been, the reference would have been to clause (c) of Part II.
Yes. But the number 10 is not relevant, because we pass on to the second part of the agreement, which should not be numbered 10. It would be a great mistake for the Seanad to insist upon this amendment. The Seanad has every right to censure me for authorising the signing of an agreement with a mistake such as that in it. All I can do is ask the House to forgive me for that oversight and not stultify it by doing the same thing.
I was not a party to any of the previous arguments on this matter. It is very interesting, in respect of a Bill on which we are all in complete agreement, to find ourselves at loggerheads with the Minister, with whom we are very seldom in disagreement. The Minister has several ways out of the difficulty. He has the subtle way, the blustering way and the simple way. The Minister is an expert in the use of the simple way. He is very calm, most reasonable, and very persuasive——
Even when he is wrong.
In this case he invites us to censure him because of a small error in the agreement. When we consider the multifarious duties that fall upon a Minister for Agriculture, none of us wants to censure him because the figure 10 occurs in an agreement for which he is responsible, being one of the multitude of things which he has to attend to. There is a difference of opinion on this matter between the Minister and Senator Ryan. It is quite plain that there is a difference of opinion between the Minister and Senator Sweetman and Senator Sweetman and Senator Ryan happen to be in agreement. When there is such a difference of opinion, the ordinary Senator must consider which side he ought to be on.
What is the governing principle in a Bill of this kind, of which I have seen a great many? I think it is that, when a Bill is brought in to ratify an agreement, the Bill must follow the agreement. If there be a mistake in the agreement which does not need to be remedied by entering into a new agreement, what the House should do is follow that mistake in the Bill with which it is dealing. To say that we would stultify ourselves by inserting the figure 10 in the Bill because that figure was only inadvertently inserted in the agreement, is to misuse the English language. I am sure the Minister knows that we would not be stultifying ourselves by so doing.
I should not like you to do so.
I am sure the Minister has a very tender corner in his heart for us. He would hate to see us go wrong in matters in which he considers us earnest and sincere. To say that a Bill to ratify an agreement must follow the agreement is, I submit, absolutely sound both from the point of view of law and the point of view of common sense. Therefore I suggest that the proposed amendment should be accepted so as to make the matter watertight and thus satisfy everyone.
This is a remarkable day. The Minister has come to the House and has voluntarily asked to be allowed to wear the white sheet of repentance. There is no need for him to wear it. The Minister has done nothing wrong and the draftsman has done nothing wrong. It frequently happens, if two or three different people set out to produce a draft embodying certain matters which are agreed to, that they each produce a slightly different draft. The mere question of the numbering of the paragraphs is a matter of colossal unimportance, so long as you can tell by the numbers what paragraphs you are referring to. I agree with Senator Ryan that there is nothing wrong with the draft, but the numbers of the paragraphs are there in order that you may be able to identify the paragraphs about which you are talking. So much for the draft.
When you are dealing with a Bill which refers to that draft, the important thing is that you should be able to say exactly what you are talking about. Then, for the first time, if you are making a reference, you are bound to make the reference in the words which happen to have been adopted by the draftsman. If you are making a reference to what appears in the draft whether correctly or incorrectly as paragraph 10 or clause 10, you are bound to refer to it in that way because anything else is an incorrect description. Therefore, I submit to the House that there is no option whatever except to describe the paragraph in the way in which the original draftsman drafted it. That is plain to demonstration. If this House desires to refer to a thing which is indicated either by letter, number, symbol or anything of that nature, it must refer to it in the way in which the original draftsman has chosen to indicate it. There should not be any real difference between the Minister and the House on this matter. There is a phrase much used by lawyers and which possibly may provide a method by which the Seanad can agree to the amendment. Sometimes it is explained to a court that a thing is not really necessary in a document but it is put in, as expressed in the Latin phrase, ex abundante cautela—that, in other words, nobody can raise a factious objection. My friend Senator Ryan says that it is absolutely necessary. To my mind it is absolutely necessary that if you desire to refer to portion of the agreement in the Bill, you must refer to it in the way in which it is identified in the original agreement.
Senator Kingsmill Moore has said nearly all I intended to say. I think the statement that 10 was an error in the original agreement is a childish one from the legal point of view. This is an agreement made between certain donors of property and the Minister for Agriculture. The Minister comes here and tells the House that this agreement to which he is a party is wrong— wrong in a very minor matter, namely the numbering of the paragraphs which means nothing as Senator Moore has said. I should like to point out, however, that there are paragraphs 1, 2, 3, 4, 5, 6, 7, 8, and 9 already in the agreement so that it is only natural that there should be a tenth paragraph. I certainly shall not vote for this Bill as it stands because I feel as a lawyer it would stultify my intelligence. I do not care whether the Minister is advised by his experts or not. I shall not vote for the Bill as it stands here. I feel I would be wasting my time in this House and wasting my legal knowledge if I had to agree to the advice which the Minister has given to the House.
I also say that I cannot vote for the Bill until the Minister produces here in this House and incorporates as part of the Bill the agreement of the settlor to extend the time within which this agreement should be ratified by legislation. The four months specified expired on the 28th April, and legislation was not enacted by that time. Therefore the agreement was dead. I say that in order to keep the matter alive the settlor should have agreed to an extension of the time before the 28th April and not afterwards when the matter was dead. It may be revived but, at all events, an agreement to extend the time within which effect was to be given to the agreement by legislation, should be in the Schedule to the Bill, so that everybody might know that the Legislature is in fact giving legislative effect to a live agreement and not to something that had expired by the efflux of time. Therefore, I suggest that this Bill should be amended by the insertion in the Schedule of the actual agreement to extend the time.
What the House is asking, is not going to handicap the Minister. These requests are made by Senators who have a considerable experience of drafting and, from the point of view of wisdom, I suggest to the Minister that he should accept the suggestions put to him. He can have no more than a layman's opinion on these matters as against the points of view put forward by lawyers in this House. Obviously they would not ask for these amendments unless they were perfectly convinced of the necessity for them.
I think that the figure 10 should be inserted in Section 2 and also in Section 11, but the Minister perhaps might wish to leave the matter over for Recommittal on the Report Stage in order that he could consult his advisers in the meantime. Certainly I am not going to allow the matter pass without recording my opinion, through a division, if necessary, in case there is a row later on. I am quite willing to meet the Minister in any way by leaving the matter over.
Perhaps I might say to the non-lawyer members of the House that I have no disrespect for the opinion of the lawyers in this House but I think that everybody knows that there are very few questions of law on which one will not get some lawyer to take a different view from another. I was advised by my legal advisers that the Bill is all right as it stands and that we should not amend it. It is quite understandable that we may have lawyers here in the Seanad who say that that is wrong.
As I say, I should like to put it to the non-legal members of the House that it does not necessarily follow that because a lawyer says a thing is absolutely wrong, it is wrong. Having said that, I should like to add that I think the lawyer Senator who made the best suggestion was perhaps Senator Kingsmill Moore. He said that sometimes a certain phrase is put into a document. I do not remember the Latin words exactly but I remember the translation.
"With greater caution."
He gave a better translation—"To prevent factious objection". I think on that basis I shall agree to the amendment.
Leave it as factious as you like so long as you agree.
If the Senator has no objection we shall deal with it now.
Sections 11 and 12 agreed to.
Schedule and Title agreed to.
Bill reported without amendment on Recommittal.
Agreed that the Report Stage be taken now.
The two amendments referred to might now be moved.
I move amendment No. 1:—
In Section 2, immediately after the word "clause", in line 38, page 2, to insert the figure "10".
And perhaps I should also move amendment No. 2:—
In Section 11, immediately after the word "clause", in line 44, to insert the figure "10".
I should like to raise a point on Section 2. It is not perhaps strictly in order, but I want to say that the other point raised by Senator Ryan could have been met in Section 2, where it says: "the agreement is hereby approved of", by the insertion of words to the effect that the agreement which has been extended to six months is approved of.
I meant to refer to that point when I was on my feet. I did tell the Seanad here on the last occasion that the agreement was extended for six months, under the agreement itself, which provides for that. I do not think I could agree with Senator Ryan that a document of that kind should be produced, because I think that might lead to a very undesirable precedent so far as Ministers are concerned. It must be obvious to the Seanad that if we pass this Bill, and if we do not provide for that, then the Bill might as well not have been passed at all. It would have no effect. I can only say that that matter has been made right.
I say the Legislature must know whether or not they are giving effect to a dead agreement, and I certainly think it is a wrong line to adopt to say that it makes things awkward for Ministers. This is as much a public matter as the agreement itself, and I think it should be incorporated in the Act. I say it is quite possible that we are at the moment giving legislative effect to a dead agreement, something which has expired by efflux of time, unless we say that the time has been extended. The agreement itself says "that these presents are conditional upon the acceptance of the said intended gift by the Oireachtas and the enactment of legislation to give effect to same within four months from the date hereof and if no Act shall have been passed for the purposes aforesaid within such period or such further period as the settlor may in writing agree to these presents and everything herein contained shall be void and of no effect." It is quite obvious that this Bill was not introduced in the Oireachtas until after the expiration of the four months, and I see no reason why that agreement extending the period should not have been also incorporated in the Bill. The Bill was printed and introduced after the four months had expired, and I have a feeling—I may be quite wrong—that this agreement to extend the time was entered into after the four months had expired. There is a presumption that that is so unless it is produced and incorporated in the Bill.
I do not know that the Senator is right in that, but if he is right what is going to happen?
Well, you have to have a new agreement. The agreement is dead. The Minister has not said "Yes" or "No" to that.
An agreement subsequent to the four months, I think, would be adequate.
We are giving legislative sanction to an agreement which says: "And if no Act shall have been passed for the purposes aforesaid within such period or such further period as the settlor may in writing agree to these presents and everything herein contained shall be void and of no effect." In other words, unless an Act is passed within four months the agreement is void. I say that the agreement to extend the time to give effect to the agreement by legislation should have been entered into before the expiration of the four months and not afterwards.
That is a matter on which there may be a difference of opinion but at all events, whether the agreement to extend the time was entered into before the expiration of the four months or after it, I say that the agreement should be incorporated in the Bill. Otherwise there is no evidence that the time was ever extended. If this Bill goes through the Oireachtas and becomes an Act then the agreement and the Act itself contain a void, because the Act will be dated some time in October, 1945, while the agreement was made on the 28th December, 1944, and the agreement itself contains a provision that it should be ratified by legislation within four months. Everybody is left in doubt as to whether or not that time was ever extended. I say that there should be in the Bill, and therefore in the Act, some evidence that the time was extended.
I think there should be something in the nature of a recital to show that. I would not go quite so far as Senator Ryan and say it is absolutely necessary to have the agreement scheduled in the exact words, but I do think there should appear on the face of the Act something in the nature of a recital to say that it was extended. I entirely agree with Senator Ryan there.
I am quite satisfied with that.
Dublin Castle was taken over in 1922 in a much simpler way than this Johnstown Castle.
There were no lawyers in the business.
At the moment, we are dealing with the amendment to insert the figure 10. We had better get that out of the way.
Amendments Nos. 1 and 2 agreed to.
Perhaps, before we take the final Question on this stage, the Minister would like to deal with Senator Ryan's point now?
As I explained already, I am at the very serious disadvantage that I do not know as much law as Senator Ryan, but, speaking as a man of common sense, I must say that if something follows on the agreement I do not see why it should not follow just the same as we are bound under this agreement to pay compensation to certain men. The Senator might ask, for instance, did we leave the jubilee nurse in the lodge? Should we produce the jubilee nurse here to say she was left in the lodge? Or, in the case of those employees, should we get their authority before the Senator says he is satisfied that they will get the compensation as laid down in the agreement? I think that all these things that arise out of the agreement are just the same, including the extension of the time for carrying it out. I do not see that it is different from anything else.
Could the Minister tell us the date on which he got the application?
From the file that I have here, I think it is likely that the extension was given after the four months. But, on the other hand, I think the thing was agreed to before the four months were up.
When does the extension expire?
On the 28th October— six months.
Is not the matter fully covered by the words in parenthesis in line 50: "(or such further period as the settlor may in writing agree to)"? Is not the matter amply covered by that?
Yes, I think so.
While I have no great belief in the infallibility of lawyers, I do not share the opinion of the Minister that one is handicapped by lack of legal knowledge when dealing with Acts of Parliament. To me it is a question of common sense, and not of legal knowledge. We are parties of the one part to this agreement, and, as such, we have to pass legislation by a certain time. If it was the case of a private individual, he would have to sign a document or pay a sum of money, as the case might be, within a certain time. We, as the Oireachtas, are fulfilling one part of the agreement, which would be void unless something else happened. It seems to me that, not as a matter of legality, but as a matter of common sense, there should be some mention or something in the Schedule to show that it has been extended for six months, and that what we are now doing is in order. It should be there for the purpose of common-sense record. I know that if I, as a private individual—and I often have to deal with legal documents—had to deal with some such agreement, I would certainly put down the date, if only for future reference, so that nobody could come along and say that it was not in proper order. As this thing stands, it would appear not to be complete from the legal point of view, but even if there be no legal significance involved, I say that from the common-sense point of view it should be here, and that could be done very easily.
Question—"That the Bill, as amended, be received for final consideration"—put and agreed to.
Question—"That the Bill do now pass"—put and agreed to.
Question—"That the Bill be returned to the Dáil with two amendments"—put and agreed to.