Léim ar aghaidh chuig an bpríomhábhar

Seanad Éireann díospóireacht -
Wednesday, 13 Dec 1989

Vol. 123 No. 12

Trustee Savings Banks Bill, 1989: Committee Stage.

Sections 1 to 3, inclusive, agreed to.

Amendments Nos. 1 and 2 are related. Amendments Nos. 3, 4 and 5 are alternatives to amendment No. 2 and amendment No. 4 is consequential on amendment No. 2. Amendments Nos. 1, 2, 3, 4 and 5 may be discussed together.

I move amendment No. 1:

In page 6, lines 33 to 39, to delete subsection (1) and substitute the following:

"(1) The Minister may make regulations for the purpose of effecting the transition from the enactments repealed by section 7 of this Act so far as the same may be necessary to give full effect to any provision of this Act.".

The purpose of this amendment is simply to specify the fact that we want alterations in the legislation to be made by means of a positive statement rather than by a negative statement; in other words, that the material would actually have to go through the Houses of the Oireachtas and be passed by resolution. The option would be provided for the Houses to seek to object to the regulations.

Amendment No. 2 in my name purports to achieve much the same as amendment No. 1. The Minister responded and I thank him for his full and detailed response on Second Stage, when he took up many of the points we had raised in our contributions. He dealt with this section and this point. I ask him to reconsider his response and allow affirmative motions or an affirmative approval in relation to this section. It comes back really to when we move from making a regulation to a point that needs amending legislation. There is some point on the scale where regulation is no longer the right way to deal with an issue, and at some point amending legislation is what should be done. Between laying the motion before the House and an ordinary annulment within 21 days sufficing, there is the affirmative motion or the affirmative approval which we are requesting here.

Under this particular section, I am asking the Minister — indeed others are asking the same — to reconsider the procedure he has detailed in the section as it now stands. There is a lot of disquiet, not just in this House but also expressed in the Dáil as well, and among the accountancy and financial institutions generally outside this House. They are not satisfied that any Minister should take upon himself the powers he is taking upon himself here by changing certain matters, albeit of a technical nature or otherwise, by just laying a motion before the House and having it annulled if necessary within 21 days. We are asking for an affirmative motion or positive approval of this House, and indeed of the Dáil, in relation to this issue.

I would like the Minister to indicate what is a significant change in the Act of the Oireachtas that can happily be dealt with by regulation. When do we go beyond that point and need amending legislation? We have to have some clear idea what we are speaking about here because when it comes to changing Acts of the Oireachtas by way of regulation, which is principally what we are talking about now, we are bestowing enormous power on the particular Minister, in this case the Minister for Finance. I am not satisfied he should take upon himself the responsibility in this case to change this legislation when it becomes an Act of the Oireachtas. I do not think this Minister for Finance or any one who may succeed him can take upon himself the right by way of regulation to make considerable changes to this measure when it becomes an Act. I would like the Minister's views and the views of his advisers and indeed the views of the Cabinet, because obviously this has been considered in some detail, why we should even consider allowing this section go through as it stands.

There is a principle here and this principle has been debated in other pieces of legislation recently, the Companies Bill and the Building Societies Bill. I stand to be corrected if I am wrong on either of those, but certainly in two recent pieces of legislation there has been considerable debate on this principle.

There are five amendments to this section. This expresses the concern of the House in relation to what the section when amended, is trying to achieve and our opposition must be quite clearly stated by way of the amendments we have proposed. I urge the Minister to accept our amendments in this case. It is a very small step towards what the Minister is proposing. It is just that this House, and indeed it would follow Dáil also subsequently, would be able to debate and consider the points that may be raised and, by affirmative approval, changes may be made to this legislation when it becomes an Act, not merely by way of an annulment procedure.

I normally come to this House in a most generous mood but I am afraid the Senators have made the kind of suggestions which just are not possible to incorporate in the context of the present legislative debate on this matter. Senators Upton, Costello and Harte wish to restrict the power to make regulations under this section purely to transitional provisions following repeal of other Acts under section 7. Section 4 (1), as drafted, is a standard provision allowing the Minister to make regulations to implement the Act. It is essential to the Act and is, for example, in both the earlier 1976 and later 1989 Building Societies Acts in this very same form.

Senators Doyle, Upton, Costello, Ryan and Harte have amendments down to section 4 (2), which would call for prior approval by both Houses of the Oireachtas for any regulations under the Act. This subsection is standard for this type of legislation and should not require regulations to have prior approval. If the Senators are concerned about regulations made under sections 5 and 6 coming in under this section, I will be pointing out when we get to these sections, that what can effectively be done under them is quite limited and that the Bill retains the prior approval mechanism for section 57 where an important choice of direction could be involved.

As I have said, it is a standard provision and it is necessary to avoid any legal or technical difficulties in putting the Act into effect. Clearly, Senator Doyle has a certain mistrust of Fianna Fáil Ministers when it comes to items like this——

I will be generous, any Minister——

The Minister without interruption, please.

The argument is made many times in these Houses that there has to be a certain degree of flexibility. There is a terrific lot of legislative work and change required and if every iota, every detail and every technical exercise has to be brought to the House before minor adjustments and changes can be made this will not help in expediting the work. Many of those provisions are adopted in other legislation, some of it passed by our predecessors 12 and 15 years ago and they worked without a hitch.

I want to say, with all respect to the Senators, who I know are keenly interested in the democratic exercise of the operation of these Houses, that there are limits. These limits, are not new, they have been tested and tried and they are in other legislation. I can assure the House they are of an absolute technical and minor nature. I really feel the Senators will have no difficulty in withdrawing their amendments and allowing the House to proceed in an orderly and expeditious way to deal with the other matters which need to be dealt with.

If the Minister's concluding remark was implying that we were being disorderly in any way in pursuing this amendment, I would ask him to reconsider it. I will not withdraw this amendment. The Minister gave a very courteous reply but it has been rehearsed so many times I could nearly have said it for him to save him the effort. There are two points to which I want to draw the Minister's attention. The section, if I am reading it correctly, and I stand to be corrected if not, means that the annulment procedure the Minister is now proposing comes into operation if the "resolution annulling the regulation is pased by either such House within 21 days". Perhaps we could have an explanation as to why both Houses are not necessary? Is there a reason why it might be brought to the Seanad and not to the Dáil, or to the Dáil and not the Seanad, and why in the normal courtesy it is not extended to both Houses? Just by way of explanation we will be told it is precedent going back to God knows when. Maybe so, but both Houses deserve the courtesy of consideration on this particular procedure.

The other point I would like to raise — the Minister is probably aware of it — is that there have been recent court judgments relating to this procedure of a mere annulling motion. The Judiciary now are quite unhappy about where the divide is between a mere annulling motion to change an Act of the Oireachtas by way of regulation, where it begins and ends and where amending legislation is actually necessary to change an act of the Oireachtas. There is a scale there in terms of what the Minister is trying to achieve and at some point the change is such that it must come in by way of amending legislation to the Act rather than just by regulation. I am trying to recall as I speak the recent court judgments. One had to do with some Teagasc regulation or maybe it was a FÁS regulation, whereby the Minister had the power by way of regulation in an annulling motion after 21 days to do whatever. The judges had quite a lot to say on the matter and questioned severely this procedure as a method of amending legislation in these Houses.

We can quote precedent but sometimes we have to look at what we have been doing over the years and at what we have been doing in other legislation and it may not always be right. We cannot continue behaving in a certain way just because we have always done that. At a certain stage we have to say: is what we have been doing over the years correct? The Judiciary have now questioned this practice and procedure. I feel that the amendments proposed for section 4 would allow no doubt to be left in terms of handling any changes the Minister might want by way of regulation. We are not saying "do not change by regulation"; we are not saying the Minister needs amending legislation if he wants to change this Act; but we are saying that we want a positive approval rather than just the annulling motion after 21 days.

I basically agree with the points made by Senator Doyle, that is, the anxiety that legislation should have to go through here in a positive manner and be approved. The second point is why it should not be both Houses of the Oireachtas. There is a lot of debate about the value of this House among the public now.

I understand we are on amendment No. 1.

Amendments Nos. 1 to 5.

With regard to the controversy about the value of this House, why should it not have to go through both Houses? Am I not right in suggesting that a certain amount of good advice may be provided as legislation passes through this House or the other House?

Senators Upton and Doyle referred to "both Houses of the Oireachtas" and the legislation says "either House of the Oireachtas". My interpretation of "both Houses of the Oireachtas" is that that has somewhat less power than "either House," so that in a sense what the Senators are seeking would be a slight diminution of——

Of the Minister's power to regulate.

Yes, "either House" gives somewhat more freedom rather than having both Houses because there are circumstances where either House would be entirely——

If the Minister said that to the Dáil he might get away with it, but the Seanad is not likely to see sight——

The dividing line is where difficulties arise in the implementation of the Bill. I could not give an example off the top of my head to this House, but clearly any Minister who will seek to extend that interpretation in a wider sense, would immediately run into difficulties so we are really talking about putting the Bill into effect or any technical problems that would surround that. We are not really talking about changing the sense, or what is really in it. If one were to interpret it in that way one would straightaway run into difficulty.

As far as judicial decisions of one kind or another are concerned in relation to matters of this kind, I do not think we can really go into that today except to say that one or two of those can surprise all of us from time to time too. What is really intended here is to try to get the Bill into law and we are talking about changes of an absolute minor nature.

Progress reported; Committee to sit again.