Committee Reports > List of Committees > Seanad > 1949 > Select Committee on Statutory Rules, Order and Regulations > Report No. 01 - Statutory Rules, Orders and Regulations

FO-SCRIBHINN II.

APPENDIX II.

Baile Atha Cliath.

18 Eanáir, 1949.

A Dhuine Uasail,

I have been instructed by the Seanad Select Committee on Statutory Rules, Orders and Regulations which was set up pursuant to a resolution passed by Seanad Eireann on 29th July, 1948, to write to you in connection with the Cream, Order, 1948, S.I. No. 272 of 1948. The Committee at their meeting of the 15th December last considered this Order and decided that they would like to hear the views of the Department of Agriculture on certain matters in the Order which they felt objectionable. On invitation, the Secretary, Department of Agriculture, attended a meeting of the Committee held on 12th January, 1949.

One of the matters to which the Committee had objection was the provision contained in Article 7 and I enclose a copy of the part of the Secretary’s evidence which dealt with this Article. The Committee think it possible that the Minister for Agriculture may have acted ultra vires in including this Article in the Order and have instructed me to ask you to be good enough to furnish an opinion as to whether the Minister had power to make the provision contained in the Article.

I should add for your information that the Order in question was revoked on the 23rd December, 1948, by the Cream Order, 1948, (Revocation) Order, 1948, S.I. No. 428 of 1948.

I await the favour of your reply.

Cléireach don Choiste,

Ard-Aighne,

Tithe Rialtais,

Baile Atha Cliath.

Roinn an Ard-Aighne

(Department of the Attorney-General),

Baile Atha Cliath.

4th March, 1949.

M. J. Healy, Esq.,

Seanad Eireann,

Tigh Laighean,

Baile Atha Cliath.

cream order, 1948. s.r., 272/1948.

Dear sir,

I acknowledge receipt of your letter of the 18th January, 1949, and have to express regret at delay in replying.

Your Committee ask me to furnish an opinion as to whether the Minister had power to make the provision contained in Article 7 of the above Order. It is not one of my functions or within my powers to advise either House of the Oireachtas or any Committee thereof but of course I am ready and willing to give the Committee any assistance I can.

I have made enquiries and the position so far as I can ascertain it is as follows:

The Cream Order, 1948 (S. I., No. 272 of 1948) was made under Article 31 of the Emergency Powers Order, 1939, as amended by the Emergency Powers (No. 173) Order, 1942. These Emergency Powers Order continue in force by virtue of section 3 (1) of the Supplies and Services (Temporary Provisions) Act, 1946.

The Cream Order, 1948, was, therefore, made under the same powers as those under which the precisely similar Emergency Powers (Cream) Order, 1944, was made.

The relevant portion of Article 31 (1) of the Emergency Powers Order, 1939, as amended, is as follows:—

“(1) A Minister may, by order or direction (which direction may be given either in writing or orally) provide—

(a) for regulating, restricting or prohibiting the … keeping … use … of articles of any description:

(n) for any incidental and supplementary matters for which such Minister thinks it expendient for the purposes of the order or direction to provide,

and also make such provision as such Minister thinks necessary or expedient for facilitating the introduction or operation or both of a scheme of control under this Article.”

Article 7 of the Cream Order, 1948, is directed to facilitating the operation of the scheme of control provided by the order and apparently the Minister and his departmental advisers were of opinion that such an Article was necessary to make the order effective. The Article may be said to be supplementary also in that it supplies the mode of proof in proceedings for a contravention of the order.

The scope of Article 31 has not, so far as I am aware, been considered by the Courts and it does not appear possible to lay down any general rules for determining what may or may not come within the general words at the end of the Article. The words are, however, very wide, and in view of the fact that the Minister may make use of the power whenever he “thinks it expedient to do so” it seems to me that a Court would be very slow to interfere with his discretion.

(Signed) Cecil Lavery,

Attorney-General.