Seanad Éireann díospóireacht -
Wednesday, 10 Dec 1947

Vol. 34 No. 16

Statutory Instruments Bill, 1947—Committee Stage.

Section 1 agreed to.

SECTION 2.

Mr. Duffy

I move amendment No. 1:—

In sub-section (1), line 27, page 2, to delete the word "primarily".

It would be absurd in sub-section (1) of this section that limited effect should be given to the application of the Bill in relation to statutory instruments. The sub-section says that this Act primarily applies to every statutory instrument which satisfies certain conditions and the proposal in the amendment is to delete the word "primarily". I propose that deletion because I want to ensure that the Bill will apply to all statutory instruments. I do not understand the use of the word "primarily"—the Bill either applies to instruments or it does not. I think the purpose of the inclusion of the word is to save the reservations made subsequently where a certificate is given by the Attorney-General. Without taking account of that at all, it seems to me that there is no need for the word.

Mr. Sweetman

May I say at this point that there has been some agreement outside the House that the House would not proceed to-night beyond item No. 6 on the Order Paper? It might be desirable that that should be announced so that the civil servants concerned will not have to wait.

An Leas-Chathaoirleach

Senator Douglas has already referred to that.

Mr. Sweetman

It was not agreed to at that time.

Mr. Douglas

I raised the point and it was objected to, but I understand that it has since been agreed.

An Leas-Chathaoirleach

The House will not go beyond item No. 6 to-night.

Minister for Justice (Mr. Boland)

I cannot accept this amendment. What statutory instruments are is distinctly set out in the section as any Order, regulation, rule, scheme or by-law made in exercise of a power conferred by statute. They are divided into these classes, namely, those to which the Bill primarily applies and others. The statutory instruments to which the Bill applies are set out in this sub-section and they embrace all instruments made under Government authority or by any person or body discharging any public duties in relation to public administration throughout the State and which are either required by statute to be laid before the Houses of the Oireachtas or are of such a character as affect the public generally or any particular class or classes of the public. All the obligatory provisions of the Bill in relation to printing and giving notice in Iris Oifigiúil apply to these instruments. As will be apparent from the classes of instruments covered by the definition clause, the idea is to secure that all instruments which are really of public importance will be dealt with as provided in the Bill. The obligatory provisions do not apply to other statutory instruments. The Bill provides that such instruments may be dealt with similarly, by permitting such instruments, if printed and published, to be included in the statutory instrument series. For example, Section 4 (1) of the Bill provides that the Stationery Office shall assign to each statutory instrument to which this Act primarily applies and may assign to any other statutory instrument printed and published by the Stationery Office a number as of the year in which it is made. What the Senator has in mind is to secure that the principle of the Bill shall apply to all statutory instruments. So far from achieving his object, he is going a long way to defeat it by the amendment, because the effect will be to restrict the Bill's applicaton to the class of instruments defined in sub-section (1) of Section 2. As the Bill stands, other classes of statutory instruments may be printed and included in the official numbered series. Therefore, I cannot accept the amendment. I do not know why the Senator wants that word deleted. I cannot understand it.

Mr. Douglas

I can quite understand why the Minister says you cannot take the word out, but I cannot understand why it is there. It seems to me most unusual. If the practice were to be adopted in all our legislation of putting in the word "primarily" I think it would be completely misleading. I take it the intention is to give a better idea of what this applies to, Clearly, the word "primarily" is not exclusive. It must mean something else as well. I am possibly wrong, but I cannot remember any Bill framed in the same way. I was hoping the Minister would explain the reasons for using that peculiar phraseology in this case. I agree with him in regard to the amendment that simply deleting the word would only be restricting it and would not achieve the object aimed at.

Mr. Duffy

The main thing about the amendment is that we know, if we delete the word "primarily", to what the Bill applies. If the word "primarily" is in, we do not know to what the Bill applies.

Mr. Boland

It is set out here.

Mr. Duffy

The Minister is leaving himself a loophole. He says: "The Act will primarily apply to the following".

Mr. Boland

Would it be all right if you said "principally" instead of "primarily"? I do not know. The draftsman has chosen that word and I think it is all right.

Mr. O'Dea

You must take first of all the expression "statutory instrument" in Section 1. It means "an Order, regulation, rule, scheme, or by-law, made in exercise of power conferred by statute". There is a great number of statutory documents or instruments made under different Acts from time to time. I have an amendment down relating to those made before 1st January, 1948. I do not know whether the Minister intends to accept that amendment or not but, if he does accept it, the word "primarily" will certainly be necessary because it refers to every statutory instrument made before the 1st January and I have asked in that amendment that, notwithstanding the repeal of the Act of 1893, every statutory instrument made before the 1st day of January, 1948, which complied with the provisions of the said Act shall remain in full force and effect. If that is accepted it will be necessary to leave in the word "primarily" as well as what the Minister referred to in Section 4.

Mr. Duffy

Would Senator O'Dea explain why even in those circumstances it is necessary that the word "primarily" should remain? I would think that if you bring in something else beyond what is set out in sub-section (2) you would preface the new sub-section by saying: "This Act shall also apply to the following." The word "primarily" does not make sense.

Mr. O'Dea

If you refer to these Acts, surely the Act applies to them with full force and effect.

Mr. Boland

This Bill applies to two kinds of instruments, one, instruments which are obligatory, which must be printed, and the other, instruments which may be or may not be, which are not obligatory, which are of a permissive nature. They can be numbered and printed and they may not be. There are certain types of Orders of local interest which may not be printed or published.

Mr. O'Dea

I do not think that would be an answer.

Mr. Douglas

Is not that only if the Attorney-General so decides?

Mr. Boland

That comes in the next section. He has to decide. He has to give a certificate. We have an amendment providing for that. I had it in the other form. I am changing that. That is, if he gives the certificate.

Mr. Duffy

And then the Bill applies to them.

Mr. Boland

If he gives a certificate that it need not. It is for him to do that, if I get this amendment passed.

Mr. O'Dea

It still applies primarily to those even though the certificate is given. We must assume they will be all made before the 1st of next January. I do not think that would be an answer. You will have no statutory Orders made between this and the 1st January, I am sure.

Amendment put and declared negatived.

An Leas-Chathaoirleach

Amendments Nos. 2, 3, 4 and 5 have a certain connection. Since Nos. 3 and 4 were circulated, Government amendments, apparently to meet the situation, have been handed in. May they all be discussed together?

Agreed that the amendments be discussed together.

Mr. O'Dea

I move amendment No. 2, standing in the name of Senator Quirke:—

To delete sub-section (2) and substitute the following sub-section:—

(2) (a) If the Attorney-General certifies in writing that, in his opinion, a particular person or body is an authority of the class mentioned in sub-paragraph (v) of paragraph (b) of sub-section (i) of this section, such person or body shall be deemed, for the purposes of the said sub-section (i), to be an authority of that class.

(b) If the Attorney-General certifies in writing that, in his opinion, statutory instruments of a particular class (defined in such manner and by reference to such things as the Attorney-General thinks proper) are of the character described in sub-paragraph (ii) of paragraph (c) of sub-section (i) of this section, such statutory instruments shall be deemed, for the purposes of the said sub-section (i), to be statutory instruments of that character.

Mr. Boland

This is to meet a point raised in the other House. Making the decision of the Attorney-General final was possibly unconstitutional. The Deputy who made that point was not quite certain, but in case there was something in it we had it considered. The amendment provides for his giving a certificate instead of his decision being final.

Sub-section (2) provided that, if any question arose as to whether a proposed statutory instrument was or was not, by virtue of sub-section (1) of Section 2, a statutory instrument to which the Act would primarily apply if the instrument were made, the question should be referred to the Attorney-General whose decision would be final. The only two questions that could arise for decision are: (a) whether an authority was of the class referred to in sub-paragraph (v) of paragraph (b) of sub-section (1) of Section 2; and (b) whether a statutory instrument was of the character described in sub-paragraph (ii) of paragraph (c) of sub-section (1). The amendment now proposes that, in lieu of the existing sub-section (2), the Attorney-General may certify (a) that a particular person or body empowered to make a statutory instrument is an authority of the class mentioned in sub-paragraph (v) of Section 2 (1) (b), or (b) that statutory instruments of a particular class are of the character described in sub-paragraph (ii) of Section 2 (1) (c).

These new provisions, apart from the fact that they may be regarded as unimpeachable on any constitutional grounds, have the positive advantage that they will enable the Attorney-General to take action without having to wait for a question to be raised. For example, if a particular body or person considers itself not bound by the provisions of the Act or tries to evade the Act on the ground either that it is not a person or body of the class referred to in Section 2 (1) or that the statutory instruments it makes are not of the class described in the sub-section, the Attorney-General, if he considers it desirable and proper to do so, may give his certificate, and the person or body concerned must thereafter comply with the obligatory previsions of the Act in regard to the printing, publishing, etc., of its statutory instruments.

I think that is a more satisfactory way than the other, which might be questioned as to its constitutionality.

Mr. Douglas

I would never like to say what might be raised, but it is not quite clear to me that this makes a very fundamental difference. If it is the Minister's advice that this may cause trouble, no one wants a constitutional difficulty in this Bill and I think we should agree with it.

Mr. Duffy

I want to stress the point set out in amendment No. 3. The amendment now proposed by the Minister is an improvement. It does at least limit the power of the Attorney-General to exclude from the provisions of the Bill in relation to printing and publishing certain instruments. When the Attorney-General forms the view that certain instruments may be excluded, he may be required to give a certificate. In a subsequent amendment, No. 5, provision is made for the publication of the fact that the certificate is given. That is a considerable improvement, but I still have grave doubts as to whether this is a kind of function that should be handed over to the Attorney-General.

I agree that someone must have the power to decide whether a particular document comes within the purview of the Bill or not and I am not questioning the choice of the Attorney-General. However, if the document is to be exempt from the obligations imposed on the Government by this Bill, information to that effect should be given to the chairman of each House of the Oireachtas. That, in short, is what amendment No. 3 proposes to do. It accepts the remainder of the scheme, but provides that the matter of the exemption of a particular instrument from the provision of the Bill will be formally reported to both Houses by the Attorney-General.

Mr. Boland

Surely there is more than that in the amendment? In it the Senator proposes:—

To delete sub-sections (2) and (3) and substitute therefor the following sub-sections:—

(2) Where in the opinion of the Attorney-General Section 3 of this Act should not apply to a particular statutory instrument then and in that case the Attorney-General shall refer the question whether in fact the said section shall apply to such statutory instrument to a committee consisting of a judge of the High Court appointed by the President of that court, a senior counsel appointed by the Benchers of the Inns of Court and a practising solicitor appointed by the Incorporated Law Society whose decision on the question referred to them shall be final.

The committee is to decide whether an instrument shall be printed and numbered or not. Surely the Senator is not serious on that? The Attorney-General is the person to settle that question.

Mr. Duffy

I wonder why this would not be regarded as serious. We are introducing legislation to take the place of legislation which has been in existence but was not applied for a number of years. The question arose before as to whether the Rules Publication Act applied here. Had that Act been held to apply to any of the regulations made by Government Departments—with the exception of certain excluded regulations—there would be 40 days' notice before an instrument came into force. That Act was set aside and has not been complied with. Advertence was made to that fact here on one or two occasions in the last couple of years, and the Government have become conscious that the situation is not satisfactory. They are introducing legislation to provide for the printing and publishing of certain instruments; in other words, they are making an obligation on themselves, upon the Departments and upon subsidiary bodies, to have instruments made under statute printed by the Stationery Office, made available to the public and published in numbered form so that they can be referred to easily.

This is an obligation which has been accepted by the Government and, on the motion of a Minister, both Houses are asked to pass a law imposing that obligation on all Governments for all time. I am suggesting that, if an exception is going to be made, if the suggestion is made by a Government Department or by any subsidiary body to whom this Bill applies that a certain instrument need not be published, the submission should be referred to three named persons. I do not think there is anything extraordinary about that or anything unreasonable. It is not good enough merely for a Minister to say he thinks it is nonsense. It may appear so to him, but there must be some coercive reason why we should leave the matter entirely in the hands of the Attorney-General rather than in the hands of a more representative body consisting of three people, one of whom would be a judge nominated by the President of the High Court.

Mr. Boland

This Bill puts a compulsion on the Government to do something it has not been required to do. In this country it was held that this Act did not apply and in England a subterfuge was resorted to and Section 2 of the 1893 Act was availed of, whereby provisional orders were made and never made permanent, so that even in England this did not apply. Now, to facilitate the public, we are requiring the Government to print, publish and number in a series, certain items, compulsorily; and making provision that they print and number others. Instead of the Government taking powers, it is simply imposing an obligation to do this, in order to facilitate the public and those interested. If anyone wants to go to the bother of contesting that, let him go to the court to contest the certificate of the Attorney-General. One might do that now. To say that we should refer it to a committee like that in amendment No. 3—well, I do not want to say it is nonsense, but it does not appeal to me.

Mr. Douglas

The Minister is so used to taking drastic powers that when he comes down to this Bill he thinks it is virtuous, where it is a case of the Government instructing themselves to do something. When he adds the words "to facilitate the public", I suggest that that is nonsense. This is for the purpose of making it possible for the public to know what the law is and, where it is to facilitate the public to know the law, I would not use those words. It would be definitely unjust to find people guilty of a law if they could not find out what it was. I think this is not to facilitate the public at all. It is a question of having published any legislation which has any interest for the public. In general, the principle ought to be approved and it is only a question of finding the most practical manner of getting it carried out.

Mr. Boland

I do not find fault with what the Senator says.

Amendment agreed to.

Amendments Nos. 3 and 4 not moved.

Mr. Hearne

On behalf of Senator Quirke I move amendment No. 5:—

At the end of the section to insert the following sub-section:—

(5) (a) Every certificate or direction given by the Attorney-General under this section shall be published in the Iris Oifigiúil.

(b) Prima facie evidence of any certificate or direction given by the Attorney-General under this section may be given by the production of a copy of the Iris Oifigiúil purporting to contain such certificate or direction.

Amendment agreed to.

Section 2, as amended, agreed to.

Amendment No. 6 not moved.

SECTION 3.

Sir John Keane

I move amendment No. 7:—

In sub-section (1), before paragraph (a) to insert a new paragraph as follows:—

(a) a copy shall be sent within seven days to each of the following: Iris Oifigiúil, the National Library, the Law Library, Four Courts, Dublin; the Incorporated Law Society of Ireland, the Registrars of the Supreme and High Courts, the Chambers of Commerce of Dublin, Cork, Limerick and Waterford.

When this matter was discussed on Second Reading the Minister stated that this was not the appropriate place to raise the question of delegated legislation. He said that it should be raised on whatever Statute under which such delegation might be given. This is eminently the proper place to raise the subject of delegated legislation, because this Bill is the machinery by which it is controlled and safeguarded. If there are any dangers in delegated legislation, Parliament is given certain powers to annul, and this Bill seriously deals with efficacy of these powers. Let us become factual and see what this Bill proposes. A Statutory Order is made and at present is laid on the Tables of both Houses. That is to be continued under this Bill. What is the next intimation under the Bill that any citizen gets regarding such Statutory Order? This is very important unless I am living in dreamland. The next intimation a citizen, whose business may be vitally affected by such Order, gets comes under paragraph (3) (b) which states that notice of the making of the Order shall be published in Iris Oifigiúil. Orders form the bulk of our legislation now. How soon is it likely, from past experience, that a citizen will get intimation? I got a printed Order dated January 11th in August. The delay there was rather extreme, but generally there is a delay of three months from the date of printing. I look at these Orders critically when I get them. It will be three months under present conditions before statutory notification is given to any citizen of the making of an Order. That is the effect of this Bill.

I propose that a copy shall be sent within seven days to a number of people. All those mentioned in the amendment will get statutory notices in seven days that the Order has been made. The only people who will know of these Orders within a reasonable time if this Bill passes will be members of the Oireachtas when they get the Order Papers. If the Dáil is in session a member will not know for three weeks or a month that such an Order has been made. I know that the Minister will say that is not what happens now. I am not concerned with that. I am concerned about what the law prescribes.

What happens now is that when an Order is made and laid on the Tables of both Houses stencil copies are sent to the Stationery Office, but as the supply is limited they are frequently sold out and latecomers cannot get copies. Notice appears in Iris Oifigiúil under a short title, but that procedure is not necessarily by statute, but by what is called an act of grace on the part of the authorities. I want to ensure that people who may be primarily concerned will get a copy of the Order within seven days. Let the present practice continue and have the law that, in general, the making of such an instrument shall be made known in Iris Oifigiúil and sent to the various bodies set out in the amendment.

Mr. Sweetman

I should like to mention one point in furtherance of what Senator Sir John Keane said. I had occasion yesterday to look for an Order that was of vital importance to a great many people. It was an Order controlling the profit margins in the whole textile industry. It was not available in Government publications and would not be available in Government publications for some considerable time. It was not available even in stencil form and only for the fact that I was a member of this House and was able to get it in the Library it would not have been possible for me to ascertain the position. The Minister will agree with me at once that this is unsatisfactory. The Minister may be able to say that nothing like that would happen in his Department but we will leave that aside. There should be a rule whereby these Orders would be available for inspection as soon as they are made and I think there is a great case for Senator Sir John Keane's amendment.

Mr. Summerfield

I wish to join in urging the Minister to do what he can to meet the case made by Sir John Keane and supported by Senator Sweetman. There is uneasiness in business circles that the Statutory Orders may not be made readily available and I urge the Minister to do what he can to meet the case.

Mr. Duffy

I am not quite so sure that the amendment as it appears on the Order Paper is quite satisfactory, but if the Minister accepts the proposal that Sir John Keane propounds in his amendment there is no doubt that the draftsmen can look after the matter for the next stage. The feeling I have is that Government Departments are aloof from the people and are often in a hurry when compiling Orders of various kinds. They know that they have unlimited powers so far as the statute is concerned, to make Orders with the force of law and the temptation is to take the short cut and make these Orders with the force of law while disregarding the fact that interested parties may not be in the way of knowing that the Orders have been made. I think that the Minister is in a totally different position from other Departments in this matter. He is the custodian of the public interest. The Minister for Finance and the Revenue Commissioners and the Department of Industry and Commerce have a different approach to this question. The Minister I think should regard himself in this matter as the custodian of the people's rights, even the rights of the citizens against his own colleagues in their interests. I urge him to accept the principle of the amendment and to reintroduce it on Report Stage in amended form so as to give expression to the intention of Sir John Keane.

Mr. Boland

I admit that something like this is desirable and I feel that I will have to agree in principle to the amendment. I am surprised to learn that solicitors cannot get copies of these Orders. I know the practice is that when an important Order is made, almost immediately there is a broadcast and the next day it is published.

Mr. Douglas

Only a résumé.

Mr. Boland

As I say, I cannot resist this. I can see nothing against it. I will look into the matter and perhaps the Dáil may be agreeable to take it to-morrow evening. I will try to have an amendment giving effect to the principle by to-morrow morning.

Mr. Douglas

If we take it at 3 o'clock to-morrow it will facilitate you.

Mr. Boland

Yes, I think the Dáil is considering rising to-morrow.

Mr. O'Dea

Will the Minister consider sending copies to the clerks of District Courts?

Mr. Boland

The clerk of the District Court is an officer of the Department and he is able to get them.

Mr. O'Dea

He may not.

Mr. Boland

They are civil servants, officers of the Department, and I think that the suggestion would widen the matter.

Liam Ó Buachalla

Will the Minister include Galway Chamber of Commerce?

Mr. Boland

I will put in the Galway Chamber of Commerce.

Sir John Keane

On the understanding that the Minister will move an amendment on the lines I have advocated, I will withdraw my amendment.

Amendment, by leave, withdrawn.

Mr. Duffy

I move amendment No. 8:—

To delete sub-section (2).

This is the principal section of the Bill. It requires that the information be printed as soon as may be after it is made. Sub-section (1) provides that as soon as may be after it is made the instrument shall be printed, that is, the statutory instrument, and that after it is printed, notice of the making of it will be published and intimation given as to where copies may be obtained. But sub-section (2) destroys all this provision, or at least nullifies the effect of it. It provides that subject to sub-section (3) the coming into operation of any statutory instrument to which the Act primarily applies shall not be affected by any non-compliance with sub-section (1). It appears to me that if sub-section (2) remains in the Bill we are discussing something that is not valid, because if a Government Department fails to comply with the requirements of sub-section (1) their failure has no effect whatever with one exception. The exception is that if a person is charged with an offence under an Order which has not been published, or printed, or made available, he is entitled to a dismiss unless it can be shown by the prosecution that he had a reasonable opportunity of knowing about the Order. I have grave doubts about the wisdom of this procedure. I ask the Minister to look at sub-section (2) and see whether it is necessary to provide against error.

Mr. Boland

The provision is merely precautionary. It could happen that through an oversight by an official something of great importance might not be put into Iris Oifigiúil. I do not think that is likely to occur, but I think that it is necessary to take some precaution against the possibility of it occurring. It is not an invitation to people to neglect to publish or to print the Order. I think we are entitled to make provision for an oversight. That, really, is all that is intended. This is a purely precautionary sub-section, and I think it ought to be left in the Bill. I agree that it can be represented as giving, say, a loophole to people to evade the responsibility of publishing and printing, but that is not so. What is contemplated may never occur, but if it does I do not think the Orders should be invalidated because of an oversight on the part of some official.

Mr. O'Dea

I would ask the Minister to think the matter over between this and to-morrow. Sub-section (1) provides that the Order must be printed and notice given where copies of it can be obtained, while sub-section (2) provides that a prosecution may be effectively brought, even though the Order is not printed and even though no notice is given as to where the Orders are to be obtained. I think that if my amendment, which is to come on later, is accepted, it will make sub-section (2) a bit innocuous. Senator Duffy has said that, if the document has not been printed, a dismiss will be given. That is not so. Paragraph (b) of sub-section (3) says that where:—

"the defendant proves that, at the date of the alleged contravention, notice of the making of the said statutory instrument had not been published in the Iris Oifigiúil.”

In my amendment I am proposing to delete the words "the defendant proves that" and insert instead the words: "whenever the prosecution shall fail to prove". If those words are inserted, sub-section (2) will not be as dangerous as it is at the moment.

Mr. Duffy

I do not want to hold up the Bill nor do I want to embarrass the Minister in dealing with this amendment. On the last occasion, I referred to a corresponding Act which became the law in Britain last year. I have not a copy of it before me, but I am wondering whether there is any provision in it similar to sub-section (2) in this Bill. I cannot remember that there is any such sub-section in that Act.

Mr. O'Dea

I am nearly certain there is not.

Mr. Boland

It is essential to have this provision in the Bill in case of an oversight. I will look up the English Act and see if there is any similar provision in it. At the same time, I want to say that I will have to insist on getting this precautionary section retained in the Bill.

Mr. Duffy

I take it that the Minister will have the sub-section re-examined?

Mr. Hearne

Yes.

Amendment, by leave, withdrawn.

Mr. O'Dea

I move amendment No. 9:—

In sub-section (3), paragraph (b), page 4, line 6, to delete the words "the defendant proves that" and insert instead the words "whenever the prosecution shall fail to prove".

Sub-section (1) of Section 3 provides that certain things must be done, such as the printing and publication of the notice, and sub-section (2), as Senator Duffy has pointed out, says that the instrument may be valid even though these things have not been done. Section 3 says that where:—

"(a) a person (in this sub-section referred to as the defendant) is charged with the offence of contravening (whether by act or omission) a provision in a statutory instrument to which this Act primarily applies, and

(b) the defendant proves that, at the date of the alleged contravention, notice of the making of the said statutory instrument had not been published in the Iris Oifigiúil,

the charge shall be dismissed, unless the prosecutor satisfies the court that at the said date reasonable steps had been taken for the purpose of bringing the purport of the said instrument to the notice of the public or of persons likely to be affected by it or of the defendant."

This seems to be a revolutionary method of bringing a prosecution. We all know that, according to the law, every defendant is innocent until he is proved guilty, and he can only be proved guilty by the prosecution making its case properly. If he is prosecuted under a statutory instrument, and if the instrument is published and a copy of Iris Oifigiúil is produced that will be held to be sufficient evidence of the making of the Order. I have no objection to that, but here we say that if it has not been published in Iris Oifigiúil—I do not care what the reason is—and if no notice has been given of where copies of it may be obtained, the position will be that a man may be prosecuted and an unprinted, type-written document may be produced in court. If this section is left as it is, when that unprinted document is produced, instead of the defendant or his advocate having the power to say: “I object to this; it is not a proper document because it does not comply with sub-section (1) of Section 3,” the defendant must go into the box and swear that he has made a search in copies of Iris Oifigiúil from the date of the making of the Order up to that date and could not find that the Order had ever appeared in Iris Oifigiúil.

In other words, you want the defendant to prove a negative before any case is made against him. Under the law, as it is, no defendant need go into the box until all the proofs are complete. Once the prosecutor says that he has completed his case he is not allowed to heel tap, but here, before the prosecution is completed— if the Section is allowed to stand as it is—the defendant must prove a negative—that he has searched for a copy of, the Order in the Iris Oifigiúil. Imagine asking a man from Connemara to say that he has searched copies of the Iris Oifigiúil from 1943 to 1948, and that no such notice has appeared in it. The section is an absurdity. It is for the prosecution to prove something. The sub-section says further that—

"the charge shall be dismissed, unless the prosecutor satisfies the court that at the said date all reasonable steps had been taken for the purpose of bringing the purport of the said instrument to the notice of the public, or of persons likely to be affected by it or of the defendant."

Even if the defendant proves that it did not appear in the Iris Oifigiúil, if the prosecution can prove that it has taken steps to bring this to the notice of the public or to the notice of persons likely to be affected, or to the notice of defendant, that will be held to be sufficient. This certainly loads the dice against the defendant and in favour of the prosecution. It makes the prosecution easy, and I think that is a bad thing.

The Minister says that he put in sub-section (2) for fear that by a mistake the document was not printed. Why should a prosecution take place on an invalid document, and why should it lie on the defendant to prove that the document on which he is prosecuted is invalid? Is it in the hope of getting him into the box so that he may be cross-examined and the case proved out of his own mouth, which is contrary to public policy?

I ask the Minister not to allow the Bill to be passed in this form because it is too revolutionary. What I suggest is reasonable, if the prosecutor fails to prove that the notice was published, the charge shall be dismissed, and I leave in the rest,

"unless the prosecutor satisfy the court that on the date of the offence reasonable steps had been taken to bring the purport of it to the notice of the defendant and persons affected".

If the prosecution can prove, even though they fail to prove that it was printed, that the purport of the Order was brought to the notice of the defendant, there could be a prosecution, and that is going very far. It provides too many alternative methods of convicting a man charged. I have no sympathy with a man charged under these orders, but I think he ought to get fair play, and the law ought not to be radically changed as is being done in this case. It is a dangerous precedent and I have seen cases of orders made by local authorities which have gone very far indeed towards presuming a defendant guilty before he has been proved guilty, and that is contrary to natural justice.

Sir John Keane

As the law stands at present and as, I feel, it will stand under this Bill, unless it is amended, an offender could have three months' grace, because an Order is not valid until printed and frequently the period before printing is three months, so that an offender would have a free run for three months, unless, as I read it, there was some publication by notice in the papers. What happens, in practice, is that, although the printed Order may not appear for three months, there is in all cases of important Orders, such as price and anti-black market Orders, a notice in the papers. That is reasonable enough. If there has been a notice in the papers, an offender could be held to have had notice and to be liable.

Mr. Duffy

There is one point in the amendment which causes me some difficulty. Senator O'Dea is concerned with sub-section (3) and a later amendment of mine is also concerned with that sub-section. I am wondering whether we fully appreciate what sub-section (3) deals with. This is the exception mentioned in sub-section (2). It says that, subject to sub-section (3), the validity or effect or coming into operation of a statutory instrument shall not be affected by any noncompliance with sub-section (1), and then in sub-section (3) the word "primarily" is again used. I understood the Minister to say earlier that this word was employed to designate the instruments made under paragraph (b) of sub-section (1) of Section 2 and that there would be other Orders to which the Bill did not primarily apply. If that is so, this exception clause will not apply to all Orders. It will apply only to Orders or instruments to which Section 2 primarily applies. If that is so, even the defence provided for in sub-section (3) will not apply, in the case of certain instruments and Orders.

Mr. Boland

I cannot agree with Senator O'Dea in this matter at all. The onus is certainly on the prosecution to show that reasonable steps were taken for the purpose of bringing the purport of the said instrument to the notice of the public or persons likely to be affected by it or of the defendant. As Senator Sir John Keane has said, when some of these Emergency Orders, like Price Orders, are made, they are not published in Iris Oifigiúil for perhaps two months, but almost immediately they are broadcast and published in the papers, and the court has to be satisfied by the prosecution that reasonable steps were taken to bring to the notice of those concerned the fact that such Orders have been made. All that is provided in this paragraph (b) is a line of defence. I understand that it is a fact that it takes a couple of months, as a rule, to get these Orders printed and that is a line of defence, if he cares to avail of it, though there is no obligation on him to do so.

There is, however, a definite onus on the prosecution, as there ought to be, to establish that reasonable steps were taken for the purpose of bringing the purport of the said instrument to the notice of the public or persons likely to be affected or of the defendant. That is an onus which is always on the prosecution to prove their case and I cannot see that there is anything revolutionary or against natural justice in the paragraph. I would not stand over any such thing. All we are doing is providing a line of defence. We are not changing what has always been there, the provision that the prosecution must prove their case and show that reasonable steps were taken to bring it to the notice of those concerned. A couple of months might be vital in the case of a food prices Order which would get wide publicity.

Mr. O'Dea

The Minister appears to forget the position in which the words are placed:—

"and the defendant proves that, at the date of the alleged contravention, notice of the making of the said statutory instrument had not been published in the Iris Oifigiúil, the charge shall be dismissed, unless the prosecutor satisfies the court....”

The first thing is that the defendant must prove that it has not been published in Iris Oifigiúil.

Mr. Boland

If he wants the charge dismissed.

Mr. O'Dea

Yes.

Mr. Boland

How far back would he have to go—two months at most?

Mr. O'Dea

We will take the two months. A man from the West of Ireland has to go into the box and prove that he searched Iris Oifigiúil over a period of two months and that the notice had not appeared therein. He can be brought to court on a seven day summons and he would not have time to search. He must prove this and only then the prosecutor can satisfy the court that reasonable steps were taken to bring it to the notice of the public.

Mr. Boland

Oh, no.

Mr. O'Dea

Yes, on the position of the words in the section—"and the defendant proves it was not published in Iris Oifigiúil”—then the charge shall be dismissed unless the prosecution shall prove that it was brought to the notice of the public or persons likely to be affected or of the defendant. They need not prove it was brought to the notice of the defendant if it was brought to the notice of the public generally by publication in any paper, or in whatever other way it is done. How many people read the newspapers and how many people who read them read these notices?

Mr. Boland

More people read the newspapers than read Iris Oifigiúil. Nobody at all reads Iris Oifigiúil. What are we going to do? It is broadcast and printed in the paper. What other steps ought to be taken?

Mr. O'Dea

If the Minister made a rule that no notice should be published in Iris Oifigiúil, I would be perfectly satisfied provided he did make a case that it would be published elsewhere. I do object that the defendant, before the case is made against him, must go into the box and prove it was not published and it is only then that the other questions arise.

Mr. Boland

I am afraid the Senator has it wrong.

Mr. O'Dea

I do not think so.

Mr. Boland

As I said, if the court is not satisfied that reasonable steps were taken to have it published, that is, published in the Press, and if the man in Connemara that the Senator is speaking of shows that it was not published in the papers or duly brought to the attention of those likely to be affected, then the case will be dismissed. The prosecution must prove that. If they do not read the papers, or listen in, surely they will not read Iris Oifigiúil. I do not see any better way than the steps taken at present. When one of these Orders is made, it is broadcast. Everybody has not a wireless set. Most shopkeepers, I would imagine, would read the papers. It would be a very backward place where the shopkeeper would not get a paper and I should imagine that the shopkeepers would get them. I do not see any better way except that it is suggested now that a copy should be posted to every shopkeeper, which would be an impossibility.

Mr. Duffy

Is not the Minister under the assumption—I think the House is under the assumption—that we are discussing control Orders?

Mr. Boland

Any Orders.

Mr. O'Dea

All Orders.

Mr. Duffy

No. We are discussing legislation for the future. It is 54 years since the last Act was passed in the British Parliament in relation to publication of statutory instruments. This is our first Act dealing with this subject. It may be 50 years before steps are taken to amend the law or to bring it into conformity with new conditions. Every statutory instrument that is made in the meantime, when controls and all these things have passed, will be affected by this Act. I think that is what is wrong. I think, on one side, Senator O'Dea is arguing his case on the assumption that this Bill is going to affect immediately statutory Orders relating to price control, for instance, rationing and things of that kind.

Mr. O'Dea

Everything.

Mr. Duffy

The Minister is conscious of that and is dealing with that problem. Senator Sir John Keane is wroth about this, because he thinks it is also dealing entirely with price control and rationing and things of that kind. I want the Minister to take this view, that this Bill is going to deal with all kinds of instruments made by all kinds of Departments in the next ten years. All I would suggest to him is to alter the phraseology of this section so that the onus of proof would be put on the prosecution.

Mr. Boland

But it is.

Mr. Duffy

No, Sir, I suggest to the Minister it is not.

Mr. Boland

My goodness.

Mr. Duffy

I think he would be wise to consider carefully whether he ought to depart from a principle which his Department stands for and which is adhered to by the minor official down as far as the lowest Civic Guard, who goes into court with the conscious knowledge that the must first prove his case, that the onus of proof is on him. I would suggest to the Minister that he ought to uphold that principle steadfastly.

Mr. O'Dea

I do not care what proof of this statutory instrument is given. Let that be proved. Let there be some definite proof required. Let that be given. But do not ask the defendant to go into the box to prove anything. You may, if you like, put in a section that it shall be a good defence if the defendant proved so-and-so.

Mr. Boland

He can go in, if he wishes to make that defence. He is not required to do it at all, and the court has to be satisfied that reasonable steps were taken to bring this to the notice of those likely to be affected and surely that is not changing the position. The onus is definitely on the prosecution. We are doing something that was never done before. We are providing an extra line of defence.

Mr. O'Dea

Could not it be put in another way? Even if the document has not been published, the defendant may be convicted on proof that he has got notice of it or that notice was given to the public. Put it in some other way.

Mr. Boland

I cannot do it any other way.

Sir John Keane

I do not see the difference in practice between a statutory instrument and an Act of Parliament. The ordinary defendant will not have personal knowledge of an Act of Parliament. How does the person get to know? He does not read the Act. He does not see the Act. He gets to know. He is not given statutory protection in the case of a statute, but I think he really deserves it in the case of a statute just as much as he does in the case of an instrument. It is not my business but if I were the law adviser to the Minister I would say that that protection to the defendant was very dangerous.

Mr. Boland

He need not avail of it.

Mr. Duffy

Is not the Senator overlooking an important fact about our legislation, that a Bill before it becomes a statute goes through five stages?

Mr. Boland

But the man in Connemara does not read it.

Mr. Duffy

The Minister would be surprised if he saw all the law notes in the Connacht Tribune.

Mr. Boland

But all the Connemara people do not get it, I think.

Mr. Sweetman

I agree with Senator O'Dea from the theoretical aspect but I want to put a point of practice to the Minister. How does he propose that the defendant shall prove that, at the date of the alleged contravention, notice of the making of the said statutory instrument had not been published in Iris Oifigiúil? There is only one way.

Mr. Boland

By getting copies.

Mr. Sweetman

There is only one way that I know that can be done. Take for example an Order that is made on the 1st January next—the operative date in this Bill—and the prosecution is brought in the month of October, 1948. There is only one way in which the defendant can prove that notice was not published in Iris Oifigiúil and that is by producing to the court every copy of Iris Oifigiúil that has been published from January to October, getting the justice personally to look through every such copy and examine every such copy and satisfy himself that every such copy contains no notice of the instrument concerned. It is going to be bad enough for ten months but when you consider that it may be an Order that has been made some years beforehand the thing becomes completely farcical. If it is going to be dealt with like this I should have to ask the Minister for Justice to make representations to his colleague the Minister for Industry and Commerce to provide, in cases like this, adequate petrol allowances so that I can bring a lorry to the court to convey all the back copies of Iris Oifigiúil that will be necessary. It will mean that District Court proceedings in regard to this will be dragged out in a most ridiculous way. It would be perfectly easy for the prosecution in any particular case to bring along and hand in the copy of Iris Oifigiúil in which the notice has been published.

Mr. Boland

If it has been published.

Mr. Sweetman

If it has been published. Then if the prosecution do that, that is that. As the situation is, what has got to be done is that the defendant has to produce every copy of Iris Oifigiúil and show that it is not in it. As a matter of practice it is going to be quite farcical.

Sir John Keane

Surely the prosecutor will base the prosecution on the Order and then the judge will say: "What is the date of the Order? Have you a copy of it?"

Mr. Boland

Of course he will, and we are providing for where it has not been printed in Iris Oifigiúil and proof will have to be given that reasonable steps were taken, that is, that it was published in the Press. The court, remember, has to settle this question. The court has to be satisfied that the thing had been brought to the notice of the people concerned.

Mr. Sweetman

I have been very stupid. I have not made myself clear to the Minister. The defendant proves that at the date of the alleged contravention notice of the making of the said statutory instrument had not been published in Iris Oifigiúil—sub-section (b). Would the Minister tell me how the defendant is going to prove that? That is the net issue.

Mr. Boland

If he wishes to avail of that line of defence, the only way I can see is that there will be a date on which the Order was supposed to be made. I imagine that the court will have to be told that by the prosecutor. He will then have to search back the copies of Iris Oifigiúil to see if they were published and if they were not the prosecution has to show they were published somewhere else. He need not take that line if he does not wish.

Mr. Duffy

Sub-section (2) exempts the Department or the authority concerned from the obligation to print.

Mr. Boland

It does not; it is only a safeguard.

Mr. Duffy

It is only a safeguard, but the words are clear that, if the Department fails to observe the provisions of sub-section (2), it does not affect the validity of the Order. Let us assume we are dealing with an Order regarding the shooting of rabbits. A guard or a gatekeeper takes a prosecution and exhibits a copy of an Order, saying: "I am proceeding on this Order against the defendant". The defendant's solicitor says: "I never heard of it, it was never published; it is a statutory instrument which requires to be published under the Statutory Instruments Act, 1947". The prosecutor refers to sub-section (2) and says: "No, it was overlooked; the Department forgot about it; and because of sub-section (2) it is not for that reason merely invalid". Then the defendant makes a case that he had no opportunity of knowing about the Order. The prosecutor says: "The Order was published in the Press and over the radio". Is the defendant not then confronted with the task of proving everything that is in this section? It is only when he has established the fact that it was not officially published that the prosecutor comes in to say that it was published in some other form.

Mr. Sweetman

I am not trying to score a cheap point over the Minister, but there is a quite genuine thing which the Minister has not yet grasped. No doubt, it is my stupidity in not making myself clear. Senator O'Dea's amendment does not quite cover the situation, because he has left out the word "not" later on. All I want to do is to save the time of the justice. I want to ensure that, if the prosecutor is prosecuting under an Order notice of which has been published in Iris Oifigiúil, he will give to the justice the copy of Iris Oifigiúil and, if he does not do so, he must prove the reasonable steps that the Minister has provided in lines 10 to 14.

There is only this difference between the Minister and myself. I suggest that it shall be the duty of the prosecutor, where he is relying on Iris Oifigiúil, and only where he is so relying, to hand the copy in to the court. The present draft provides that where the prosecutor relies on Iris Oifigiúil, I, for the defendant, have to bring into court every issue since the date of the Order and hand them up to the justice to let the justice satisfy himself that the notice was not published in it. It would be very much more expeditious if the prosecutor handed in the copy, which would end the matter and the proviso would not operate.

Mr. Boland

Surely he will do that, if it has been published?

Mr. Sweetman

Why not say so?

Mr. Boland

We have to provide for cases where it has not been published in an interim period. He might show that, in that period and before the Order became operative, reasonable steps were taken to bring it to the notice of the people concerned that the Order had been made. It would be a queer prosecutor who would not do that as the first thing.

Mr. Sweetman

That is what the Minister intends, I agree.

Mr. Boland

He must satisfy the court——

Mr. O'Dea

No. That is the trouble.

Mr. Boland

——that reasonable steps have been taken.

Mr. Sweetman

That only appears where the defendant has brought in all the copies of the Iris Oifigiúil and has shown that there is no notice in it. I know perfectly well what will happen. A client of Senator O'Dea's is prosecuted in June next for a breach of the Clothes Rationing Order. The prosecutor goes into court and it is up to Senator O'Dea, first of all, to show that the Order was not published, before he puts the Department on proof of the reasonable steps.

Mr. O'Dea

Exactly.

Mr. Sweetman

It is going to mean that a trifling point of legal technicality will waste the time of the court for a couple of hours, because the justice must go through each and every copy of Iris Oifigiúil to satisfy himself that the Order is not in it. It will waste the time of the court in a most appalling manner.

Mr. Douglas

I hesitate to intervene from the point of view of a layman, but it seems to me that the Bill intends to provide for what is to occur in two different cases—one where it has been printed in Iris Oifigiúil and the other where it has not. Where it has been printed, the prosecutor relies on that and produces it. Where it has not been printed, the judge will have to find out whether the Order has been published elsewhere or not, where it is claimed that it has not been published elsewhere. How is the judge to find out? The Bill says that “the defendant must satisfy”. We think it better to say that “the prosecutor must satisfy”.

There are two distinct cases. Where a judge is satisfied—whether by admission of the prosecutor or by proof of the defendant—that it was not in Iris Oifigiúil, the prosecutor will have to proceed and show to the judge that reasonable steps were taken and that the person concerned knew, or ought to have known, all about it. That does not arise if it was printed. It will only arise where it was not printed. All we are making this debate about is the one case where it was not printed. Who is to satisfy the judge that it was not printed? The Bill says it must be the defendant, that the onus of proof that it was not printed is on the defendant. Senator O'Dea and Senator Sweetman agree that that would save a lot of time and I think they have made a clear case.

Mr. Boland

There is practically the same provision in sub-section (2) of Section 3 of the English Act—the Statutory Instruments Act, 1946, which reads:—

"In any proceedings against any person for an offence consisting of a contravention of any such statutory instrument, it shall be a defence to prove that the instrument had not been issued by His Majesty's Stationery Office at the date of the alleged contravention unless it is proved that at that date reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the public, or of persons likely to be affected by it, or of the person charged."

There is no case of the defendant proving it there.

Progress reported; Committee to sit again.

The Seanad adjourned at 10 p.m. to 3 p.m. on Thursday, 11th December, 1947.