Select Committee Adaptation of Charters Bill, 1925 díospóireacht -
Thursday, 18 Feb 1926

SECTION 1.

(1) The Executive Council may from time to time by order make all such adaptations of and modifications in any Charter which by virtue of Article 73 of the Constitution has the force of law in Saorstát Eireann as are in the opinion of the Executive Council necessary in order to enable such Charter to have full force and effect in Saorstát Eireann.

(2) Every order made by the Executive Council under this section shall be laid before each House of the Oireachtas forthwith and unless and until a resolution annulling such order is passed by either House of the Oireachtas within the next subsequent twenty-one days on which that House has sat after such order is laid before it, such order shall have effect as if enacted in this Act, but no such resolution shall operate to prejudice the validity of anything previously done under such order.

Mr. JAMESON

I move the following amendment:

In Section 1, to delete the words " by virtue of Article 73 of the Constitution has the force of law " in lines 26-27 and to substitute therefor the words " is in force."

Article 73 is one of the transitory provisions of the Constitution, and this is how it reads:

" Subject to this Constitution and to the extent to which they are not inconsistent therewith the laws in force in the Irish Free State (Saorstát Eireann) at the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."

Section 1 of this Bill, as it now stands, would only bring in under it statutory bodies and chartered bodies which were established by law. I am informed that there are a good many statutory bodies which were established not by any Act of Parliament at all, but by the direct act of the King, and therefore have no, what I believe in technical language is called, legal signification. Therefore, they would not come in if this whole thing is based on Article 73 of the Constitution.

The PRESIDENT

They could have no force or effect except through that Article. We would not bring a charter into existence or give it the force of law if it has not got that already. It must get that character and it can only get it through the Constitution. There is an idea amongst certain people, I believe, that a charter is above the law, and that it cannot be altered. That is all wrong. Whatever difference of opinion there may be regarding the King, the Houses of Parliament, the Government or anything of that sort, it is clear. I think, that whatever is vested in one may have been distributed over the others, but it never gave to one party on any principle which constitutes legislative authority any more power than could be transferred to the others. Take a case in point. In England, where the King had power by charter to do anything in connection with certain things, every single power that he had got is now shared by the other two powers in the Realm, and they have exactly the same power that he had when he acted without either of these. In other words he did not reserve any power and could not reserve any power. The Constitution gradually developed so that the machinery, the motive and actual power is in the Houses of Parliament. Acts of Parliament enacted in England are as we see enacted " by the King's most excellent Majesty, by and with the advice of the Lords, Spiritual and Temporal." Where does the King come in with regard to this? I am not speaking in any way disrespectfully, but I am examining this proposition as it is put before us. It is the Parliament which initiates, considers and passes all that. It does every act until it gets the sign manual which makes it law. To say that Parliament would not have the power to reconsider, to adapt or to alter any charter which it passes would, I think, be against the Constitution they have.

Mr. GUINNESS

It is perfectly true to say that in certain cases where an alteration of a charter is required it has been done by a new King's letter.

The PRESIDENT

That I think was the position in England before the Saorstát was established. Examining the position with regard to the Dominions, so far as these things are concerned there is an absolute refusal on the part of the Crown to alter charters, the submission being that that is now the business of the legislature. In this particular case, it is not doing justice to the measure to say that it is a proposal to alter. This particular Bill must be read in conjunction with the Adaptation of Enactments Act.

CHAIRMAN

I think there is a certain amount of misunderstanding as to the object of this particular amendment. I had a conversation with Senator Brown who was consulted with regard to the drafting of this amendment and I think his object was not to prevent the Executive Council by order amending charters, but rather he feared that the exact wording of the section as it now stands might exclude certain charters from being ones which could be amended by order under this bill. He considered that there are two classes of charters, one which under the old arrangement was given nominally by the King himself, and the other which was given by the Parliament, if you like, theoretically, as the President pointed out, by the King himself. Those given by the Parliament are specifically taken over under Article 73 of the Constitution as being laws in force, but the others were taken over, not as laws in force, by the Treaty and under the Constitution, not specifically under Article 73. Senator Brown felt that if you simply said " any charter in force " that it would include all and would make no possible doubt as to every single charter, whether it was previously given by the King or by the Parliament having the force of law, and would prevent it from being altered by order. The object of the amendment is to try and include every possible charter under this Bill.

The PRESIDENT

I do not want to give anything the force of law that is not entitled to have it or that ought not to have it.

CHAIRMAN

Not to give it the force of law, but to make it possible of alteration.

The PRESIDENT

I do not want to have the Executive Council deluged with a number of these things. The Executive Council has no particular appetite for dealing with these things at all. It means that a lot of onerous work will be put upon us as well as detailed examination on the part of our legal advisers to know what the effect of these charters is, and whether a particular case comes within the scope of our jurisdiction in regard to these matters. In that case, I certainly would not like to make the channel any wider than what it is.

CHAIRMAN

I am not wishing to do that.

Mr. JAMESON

I think the President is looking at this matter from a totally different point of view to that which I hold. Under this amendment I am endeavouring to do what the Chairman has stated, namely, that the Executive Council should have the power to deal with all charters now in force in the Saorstát. The word " may " will protect the Executive Council from doing things that it does not want to do.

The PRESIDENT

I think it would not be in accordance with the title of the Bill to carry out the object stated by the Senator. This Bill has got to do with certain matters that we actually got control of by reason of Article 73 of the Constitution, and of the Adaptation of Enactments Act. Further than that we are not asking to go. The title of the Bill keeps us within certain limits.

Mr. GUINNESS

If you take two specific cases one would be the case of the Bank of Ireland. The Bank of Ireland is governed by an Act of Parliament which, under the Constitution, the Government might vary or alter if it liked. It has also a charter which is supplementary to the other. You have other bodies like the College of Physicians which functions under a charter but where there is no Act of Parliament. By leaving the section of the Bill as it is I do not think you could review the Charter of the College of Physicians but you could, by legislative enactment, review the Charter or Act of Parliament under which the Bank of Ireland exists. You are prevented from effecting any alteration or change in the College of Physicians' Charter. I take that as one case——

The PRESIDENT

Let us examine that statement. Alteration of charters is not the intention of this Bill. It is where there is an infirmity in the charter that it comes in. In the case of the College of Physicians there is an infirmity, inasmuch as that formerly certain persons were appointed by the Lord Lieutenant or by the Lord Chancellor or by the Lord Chief Justice. We have not got any officials corresponding to those people, and it is to enable the Executive Council to remedy these very defects, by order, that this measure is introduced. It is not for the purpose of altering charters, but it is for the purpose of giving the force and effect to them that they ought to have.

CHAIRMAN

The case for the amendment is that certain legal advice goes to show that you would be excluded from doing that very thing which you want to do. If that is not the case then this amendment goes altogether.

Mr. JAMESON

The trouble is this: Supposing we pass this Bill, with this clause as it stands, and supposing we happen to be right, and that after the passing of the Act, a case, such as we put forward, does arise you cannot deal with the very object you say you wanted to deal with, what position would be in?

The PRESIDENT

We would have simply to come along with another Bill.

Mr. JAMESON

If you think our legal advice is wrong and that if the Bill is passed, in this form, you can deal with the cases we put forward there is no use in our going further.

CHAIRMAN

That is the position. I suggest two methods in which this matter could be dealt with. One is that Senator Jameson withdraws his amendment now, and brings it up again, on report stage, if necessary, when the matter can be further considered, or alternatively to put up another.

Sir JOHN KEANE

I think that is quite satisfactory, if the Government is satisfied. We do not want to force wider powers upon them than they are anxious to take.

The PRESIDENT

The powers here are very restricted and are not with a view to alteration, modification or amendment.

Mr. GUINNESS

There will be a hardship to certain bodies, as, for instance, Swift's Hospital. There are certain things which the governors of that hospital wish to do and cannot do, because under the charter the Lord Chancellor had to deal with the matter and now there is no Lord Chancellor.

The PRESIDENT

We come in there.

Mr. GUINNESS

I did not know you would, because that particular charter is not included under Article 73 of the Constitution.

Sir JOHN KEANE

Was this point definitely put before the legal advisers of the Government?

The PRESIDENT

There was an amendment in the Dáil moved by Professor Thrift dealing with this particular point.

Mr. JAMESON

Then the Government did consider it. I do not press the amendment.

CHAIRMAN

I take it Senator Jameson wishes to withdraw the amendment.

Mr. JAMESON

Yes.

Amendment, by leave, withdrawn.

Question—" That Section 1 stand part of the Bill "—put and agreed to.

Section 2 (Amendment of Section 7 of Adaptation of Enactments Act, 1922).

Mrs. WYSE POWER

Would it not be well to have prepared a list of all the chartered bodies?

The PRESIDENT

I do not think you could possibly do that. These charters are within the personal custody of the bodies affected by them.

Mrs. WYSE POWER

I mentioned it because somebody might wish to have a list of the chartered bodies when this matter comes before the Seanad again.

The PRESIDENT

There is the case of one particular library that is governed by a charter. In that case some judges had a right or privilege, or jurisdiction, to appoint some persons to positions on the board. That has not been done. In a case like that we had no interest in the matter. It is only where there is a body exercising a particular function which affects a particular number of people that we come in to enable things to be done.

Mrs. WYSE POWER

This Section 2 refers to Boards and Corporate Bodies and Local Authorities who have charters. Will this give power to the Executive Council to interfere with the charters of the Dublin Corporation?

The PRESIDENT

I thought I had explained that this is the third of three measures that have been introduced to enable things to run, Section 73 of the Constitution brings the law into force, the Adaptation of Enactments Act specifies a large number of Acts that are given the force of law in the Saorstát, and now the Adaptation of Charters Bill comes in. Certain of these charters cannot work until they have some governmental administration set up by the Saorstát to take the place of such persons as the Lord Lieutenant, the Lord Chancellor, or the Lord Chief Justice under the old régime, who had the right to nominate persons to fill certain positions as they fell vacant in these chartered bodies. One particular institution has been held up because an appointment which should have been made by the Lord Lieutenant or the Lord Chancellor or the Lord Chief Justice, could not now be made by such persons. This Bill is to enable the Executive Council to arrange as to how these appointments should be filled and to prevent an order for their being filled.

Mrs. WYSE POWER

Does this Bill give the Executive power to interfere with the charters of the Dublin Corporation ?

The PRESIDENT

No, nor with any other charters so far as interference is concerned except in so far " as are in the opinion of the Executive Council necessary in order to enable such charter to have full force and effect in Saorstát Eireann." That is the complete object of the Bill.

Sir JOHN KEANE

But it gives you power to take action which might be controversial. For instance, it might be a controversial question as to who you should appoint to discharge the duties hitherto discharged by the Lord Lieutenant or the Lord Chancellor or the Lord Chief Justice.

The PRESIDENT

Certainly, to the same extent that it might be controversial as to what person the Lord Chancellor himself would appoint, or controversy might arise as to whether the Lord Chancellor, being a very able man, might not make a better selection than the Executive Council.

CHAIRMAN

In such cases the matter might be brought by resolution before either House of the Oireachtas. That is provided for under Section 1.

Section 2 agreed to.

Section 3 agreed to.

Mr. JAMESON

I move a new section. After Section 3 to insert a new section as follows:

" 4.—Sections 2 and 3 of this Act shall not apply to any board or body which exercises any function of government or discharges any public duties in relation to public administration as merely ancillary to the main objects for which such board or body was constituted either by Statute or Charter or partly by Statute and partly by Charter."

It is very difficult in a Bill like this which works so much on reference to know how a certain clause will really work out. Sub-section (2) of Section 2 deals with boards constituted for the purposes of Section 7 of the Adaptation of Enactments Act.

Under sub-section 2, " discharging any public duties " do not come in, but when you come to refer to the Adaptation of Enactments Act, sub-section (4) of Section 7 says:

" This Section applies to any statutory Board of Commissioners, or other statutory body or bodies exercising any function of government or discharging any public duties in relation to the public administration."

The whole point of this amendment is of definition. What is a definition of " exercising any function of government or discharges any public duties in relation to the public administration "? That is not defined either in the Bill or in the Adaptation of Enactments Act, and a contention might be raised under this. Take the Government business distributed amongst various banks—Government accounts, the collection of revenue by a bank, all kinds of different duties which are performed by banks for the Government, the keeping of Government accounts and the keeping of registers of Government securities. I am not imputing anything in this. I am pointing out what would apparently be a perfectly legal action if n amendment such as I propose were not added to the Bill. Look again at Section 7 of the Adaptation of Enactments Act and the powers that are given under it. Suppose it were held that some body whose main business had nothing to do with the Government but who were performing some governmental duty were thereby rendered liable to what can be done under Section 7 of the Adaptation of Enactments Act, which gives such powers as this:

" Wherever any statutory Board of Commissioners or other statutory body to which this Section applies was in existence on the 6th day of December, 1921, . . . the Executive Council may, by Order, establish a Board of Commissioners to exercise the functions which were on the 6th day of December, 1921, exercisable by such statutory commissioners or statutory body as aforesaid."

Therefore, if no protection is put in, there will always remain a doubt as to whether any of these bodies that may be told off to do Governmental duty might, by so doing, render themselves liable to have commissioners appointed to do the whole of their duties.

Sir JOHN KEANE

Any chartered body.

Mr. JAMESON

Of course it must be a chartered body, otherwise the section would not apply. That is as far as I am dealing with the Adaptation of Enactments Act, which is dealt with in Section 2. In Section 3 we come to the Ministers and Secretaries Act, Section 9. If you read Section 3 you will see that there is nothing about doing Governmental duties in Section 3 of the Bill; it is all governed by Section 9 of the Ministers and Secretaries Act. Section 9 of the Ministers and Secretaries Act is a very long one. It is very troublesome in dealing with one Act to be referred to another Act which you must read before you know what you are dealing with. It says:

" It shall be lawful for the Executive Council—

(a) By an Order of the Executive Council, to dissolve any Board of Commissioners or Statutory Body to which this Section applies.

In sub-section (4) of the Ministers and Secretaries Act Boards of Commissioners again come in:

" The Boards of Commissioners and statutory bodies to which this Section applies are all statutory Boards of Commissioners and other statutory boards and bodies exercising any function of government or discharging any public duties in relation to public administration in Saorstát Eireann."

That means that although there is no mention of these Governmental duties in Section 3 of the Bill, when you come back to the Act upon which it is based there is exactly the same relation between the Government and the bank, or any chartered body that would be acting for the Government. The same doubt will exist as to whether they are not liable to all the actions which are mentioned in these two clauses and which give the Executive full powers to put out boards and to put in commissioners. There are only two exceptions at the end of Section 9 of the Ministers and Secretaries Act:

" This Section shall not apply to or affect any University established by Royal Charter or any body corporate similarly established for the regulation of the admission, qualification, and conduct of the members of any profession or business."

But excluding these two I believe that it means that any other body whatever holding a charter may be brought in if it is held that by doing Government duties of any kind they render themselves liable to the clauses in these two Acts. Therefore, it does seem wise to add to the exceptions which are mentioned in the Ministers and Secretaries Act, some clause which will enable any chartered body to do work for the Government without running the risk of being brought in under these two tremendously drastic clauses. We have not any idea that the Government had any such thing in mind, but if we pass the Bill as it stands, and it is then held that the keeping of a Government banking account is performing Governmental duties the bank will be liable to all these restrictions, and it would seem wise under these circumstances to add to the exceptions which are made here. The amendment is not drawn for the purpose of interfering in any way with Government action or with Government Departments, but merely to protect public bodies that are doing something for the Government by arrangement. That is why we put in: " In relation to public administration." It is merely ancillary to the duties for which such board or body was constituted.

The PRESIDENT

Section 7 of the Adaptation of Enactments Act, 1922, refers to certain " Statutory Boards of Commissioners " and " other Statutory Bodies," and provides that the Executive Council may by Order establish a Board of Commissioners to exercise in Saorstát Eireann the functions previously exercisable by any such Statutory Board of Commissioners or other Statutory Body. The terms " Statutory Board of Commissioners " and " Statutory Body " are uncertain and lacking in precision. Some of the bodies which are intended to be comprised in the section are both constituted and governed by statute, and no question can arise regarding any such body. There are, however, other bodies which were intended to be comprised in the section, some of which are constituted and governed by charter, others of which are constituted by charter and governed partly by statute and partly by charter, and yet others which are constituted by statute and governed partly by statute and partly by charter. The object of Section 2 of the Bill is to bring all such bodies within the purview of Section 7 of the Adaptation of Enactments Act. Section 9 of the Ministers and Secretaries Act, 1924, also deals with " Statutory Boards of Commissioners " and " other Statutory Bodies," and Section 3 of the present Bill is intended to amplify and define the expressions " Statutory Boards of Commissioners " and " other Statutory Bodies " in that section in the same way that Section 2 defines these expressions for the purpose of the Adaptation of Enactments Act.

Sir JOHN KEANE

Is not the term " exercises any function of government " rather lacking in precision? Does it not turn on that? Certain bodies obviously—I suppose you might say that the Dublin Corporation is one—discharge functions of government, but there comes the point where it is very much more doubtful, where the function of government is very slight, about three per cent. of their work.

Mrs. WYSE POWER

They are doing other work as well.

The PRESIDENT

But even so, why should not they be subject to regulations as well as anybody else?

Sir JOHN KEANE

But, then, the Government has the power to put in commissioners and take over these bodies.

CHAIRMAN

I think the position is clear. We will take a clear case. The Bank of Ireland in the main carries on banking, including Government banking. It also carries out certain functions for the State. Whether these are functions of Government or not I do not know, but they might be held to be. If so, this power may be given to put in commissioners to control the Bank of Ireland. That power may not be there, but I do not think there can be any objection to making it clear, where the functions of Government, such as they are, are not the main functions, that this does not apply. I am quite certain that the Government do not want it to apply. The question is: Does this amendment take away anything that the Government want? I cannot see that it will.

Mr. JAMESON

It was so drafted as not to do it. It was not intended to interfere with what we know is the purpose of the Bill, but to add to the list of exceptions which the Government have made themselves.

Sir JOHN KEANE

This is to specify to what it will not apply.

Mr. JAMESON

That was the only way we could think of that would secure the object we had in view, to settle the question and not have litigation or argument about it.

The PRESIDENT

I might say that the Bank of Ireland was not in our minds.

Sir JOHN KEANE

The lawyers find out these things, and, after all, this is very important, I think.

Mr. JAMESON

We are going to have a Banking Commission, and one of the things that we are going to discuss is the distribution of Government business. If many of the Banks are ever offered Government business, and the penalty is that they are going to render their Boards liable to be taken away, they will not be so keen about it.

CHAIRMAN

Is that an argument for or against the amendment?

Mr. JAMESON

I think the position should be clearly defined. I merely bring it under the Government's notice in order to make the Bill as clear as possible.

The PRESIDENT

I cannot say that I would accept that amendment at present. As a matter of fact, I think that it is not quite clear what the intention of it is.

Mr. JAMESON

Is there anything I can clear up?

The PRESIDENT

I am not sure. I should apologise for not following you more closely on it. I was looking up some of the previous amendments on it, the amendments which have been handed in, and, as far as I know, one similar to this was not handed in. That is as far as I can find. I think there was a great deal of nervousness that came from other bodies other than banking institutions. Has the Senator any place in mind other than the Bank of Ireland?

Mr. JAMESON

No. I do not know of any other body that would be affected in this way.

Sir JOHN KEANE

I understand that if Trinity College did certain work for the Government they would be affected.

Mrs. WYSE POWER

They are exempted.

Sir JOHN KEANE

If they got a grant for doing any special research work they might be liable.

CHAIRMAN

I think it applies to every body that can be held to discharge functions of Government. What " functions of Government " means I do not know. It is very difficult to know.

Sir JOHN KEANE

If the terms " function of Government " as relating to these Acts could be defined it would probably solve the matter. It is very vague at present. Anybody who collects a receivable order or Land Commission annuity might be held to be discharging " functions of Government."

Mr. JAMESON

I am sure the law officers of the Government could clarify the matter. They could bring forward an amendment of their own.

The PRESIDENT

Might I take down from you very shortly what is the fear with regard to this amendment?

Mr. JAMESON

If any chartered body does any duties for the Government which may bring them under the clause " function of Government " or discharges any public duties in relation to public administration, although ancillary to its regular business, it renders itself liable to all these restrictions.

The PRESIDENT

I do not think " function of Government " was intended in that respect.

Mr. JAMESON

I am sure it is not. I am sure it was not meant in that way but in the opinion of persons quite learned in the law, it is held that the Government can take action and be upheld by a Court of Law. Under this Bill, in its present shape, if certain duties were being performed by a statutory body the Government would have that power by these two Acts.

Sir JOHN KEANE:

" Functions of Government " is very wide. Some employers collect income tax for the Government from their employees. You might say that these were discharging a function of the Government and that is not what is intended we know. You want a definition of what is meant by " function of Government."

Mr. JAMESON

It is to make the law clear, so that if the Court of Appeal be called upon to give a decision, the law is made quite clear.

Mr. GUINNESS

It is conceivable that the College of Physicians may be authorised by the Government to hold examinations. I do not know but I am inclined to think that that might be considered a function of Government and would bring them under the scope of the Bill which they may not wish to come under. Then you have the Incorporated Law Society who also work under charter and they may be called upon to do something on behalf of the Government which would bring them under the Bill because it might be held that they were discharging a function of Government.

Mr. JAMESON

Wherever these duties are merely ancillary to the main object, they should be outside the scope of the Bill. We want to leave every body that is part of the Government, and so on, entirely in charge of the Government but where some outside body does certain functions which might be held to be part of the Government, we think that the Act should not apply.

CHAIRMAN

The position is that there seems to be some doubt about this amendment. It could be withdrawn and brought up on the Report Stage if necessary, or it could be inserted now and withdrawn on the Report Stage. This is not the Final Stage, by any means.

Mrs. WYSE POWER

It certainly does seem very reasonable.

Mr. JAMESON

I would like the President to say that he would look into it.

The PRESIDENT

Oh, yes, I will look into it.

CHAIRMAN

In that case if Senator Jameson withdrew his amendment, the Bill would be reported without amendment to the House. Presumably Senator Jameson will hand in this amendment on the Report Stage.

The PRESIDENT

We part on this understanding that if I cannot accept the amendment and cannot substitute something else I will let Senator Jameson know so that he can give notice of this amendment again.

Amendment, by leave, withdrawn.

Question—" That Section 4 stand part of the Bill "—put and agreed to.

Title put and agreed to.

Ordered that the Bill be reported to the House, without amendment.

Sir JOHN KEANE

What is the effect of reporting a Bill without amendment? Can it not be debated at all?

CHAIRMAN

The procedure at present in the Seanad is that when it is sent to a Select Committee, that takes the place of the Committee Stage in the House and the next stage in the House is the Report Stage. Then an amendment can be put down again.

Sir JOHN KEANE

There can be no debate on the Report of the Committee?

CHAIRMAN

Well, there never has been, but I would not like to say whether it is in order or not. However, it is clearly undesirable, because there is every possibility of discussing it here. I do not think there should be any debate on the Report Stage.

Report Stage ordered for Wednesday, February 24, 1926.

The Committee rose at 4.50 p.m.