Committee Reports::Report No. 01 (1955) - Statutory Instruments ::31 March, 1955::MIONTUAIRISC NA FINNEACHTA / Minutes of Evidence



Déardaoin, 31 Márta, 1955.

Thursday, 31st March, 1955.

Chruinnigh an Coiste ar 2.30 p.m.

The Committee met at 2.30 p.m.

Members Present:


G. O’Brien (Chairman);


O. L. Sheehy-Skeffington;

J. H. Douglas;

L. Walsh.

W. R. Fearon;



Mr. Brendan Kiernan, B.L. (An Roinn Rialtais Aitiúil), called and examined.

1. Chairman.—I have been asked to draw your attention, Mr. Kiernan, to the Housing (Grants to Housing Authorities) Regulations, 1954. These regulations are made under Section 24 of the Housing (Amendment) Act, 1952. The section provides for the making of grants to a housing authority erecting a house, provided, inter alia, that the house complies with the rules set out in the First Schedule to the Act of 1932, as amended. The Act of 1932 is the Housing (Financial and Miscellaneous Provisions) Act, 1932 and Rule 4 of the First Schedule to that Act provides:—

“Houses shall in respect of their sites, aspect, planning, construction, sanitation and number per acre comply with the prescribed conditions.”

Paragraph (1) of Article 4 of the regulations states:—

“The conditions in respect of sites, aspect, planning, construction, sanitation and number per acre of houses set out in Schedule 1 to the Housing (New Houses) Regulations, 1950, shall be the prescribed conditions under Rule 4….”

Paragraph (2) of Article 4 of the regulations provides:—

“Any of the said conditions may be dispensed with by the Minister in any particular case if he is satisfied that exceptional circumstances exist which render rigid adherence to the conditions undesirable.”

The net issue is whether, once the conditions are prescribed, the Minister can by regulation take power to dispense with any of them. It does not appear to us on the face of the document in front of us that the Minister possesses that power and that is the matter upon which we would ask you to assist the Committee.

Mr. Kiernan.—The reason for the particular condition in administrative practice is that if it were omitted certain cases would occur in which houses would be deprived of grants simply for non-compliance with very small details. I remember one case recently in which the regulations state that where there is a septic tank it shall not be less than 60 feet distant from any dwelling house. In this particular case, it could not be 60 feet—it was about 50 feet—and if it was to be 60 feet it would mean that the builder would have to enter another person’s holding. It is to meet cases like that that the condition has been put in. It appears in all similar regulations since 1924. I have brought with me each of the Acts and each of the regulations, if you would care to compare them with what we have done in the regulations under review. I myself raised the question in 1950 as to whether it was a proper exercise of the Minister’s powers or not. I went back over the previous regulations and found that it had been done consistently since 1924 and as it was at least doubtful, in my opinion, I did not like to alter the existing practice. If the Committee consider it desirable, we could take powers in our next housing legislation to deal with this or perhaps we could revoke the regulations and take out the offending clauses and change the conditions in the Schedule. The Department objects to that second course because it would loosen the conditions too much and lower the standard of building, but it could be done. If you take the example I gave: “a septic tank shall not be less than 60 feet distant from any dwelling house”, we might perhaps word that in such a way that this dispensing power would be contained in the actual Schedule itself as part of the prescribed conditions.

2. Chairman.—There are two different points, it seems to me. The first is whether the dispensing power is within the ambit of the powers of the Minister. That is really a question of law or of legal interpretation of the statute. The second is whether the dispensing power is administratively necessary. That, of course, is a matter of opinion. They are two quite different points and the point we are really concerned with in this Committee is whether the regulations do not offend against the existing statute. I take it from what you have said that you are not prepared to defend the regulations very vigorously?——No, I am not.

3. You are prepared to say that there is a doubt in the matter?——Having regard to the fact that the practice has continued so long, I was unwilling to stop it, especially as it would have upset the Department administratively. The officials would be administering other sets of regulations without this clause and this one with it.

Chairman.—I must say that it seems to me that, unless some other member of the Committee wishes to raise any point, the witness has answered our objections very fairly.

4. Senator Sheehy-Skeffington.—To me, it seems that what the witness says about the possibility of altering the Schedule so as to grant the Minister the right to dispense with certain prescribed conditions, would be a happier way of dealing with it because, clearly, there will be some conditions which one would not like to see dispensed with even by the Minister whereas others need not be so rigid. If you give the Minister complete power to dispense with all the conditions, it seems to me that that would perhaps be giving too much power, so that the witness’s second suggestion would appeal more to me, although I imagine it would be complicated.

Mr. Kiernan.—It would be complicated and difficult. It means that we would delete Article 4 (2) altogether, and in our Schedule provide such drafting as would ensure that it does what we want. In that way I think the Minister would not dispense, as it were, from anything that was of importance.

5. Senator Fearon.—It could even be that certain conditions could be interpreted by the Minister rather than dispensed with. It is the “dispense with” that seems to me to stultify the whole thing. Under other legislation, other Ministers have a similar power of dispensing.

Mr. Kiernan.—I think the inspector who inspects the house reports on the degree of compliance with the conditions in the Schedule, and if he says, as in the example given, that the septic tank is 50 feet from the nearest dwelling house, it leaves the Minister in the position that there is nothing he can do about it, unless you have some little loophole in the actual Schedule.

Senator Fearon.—I see the necessity for loopholes, certainly, in order to make administration possible, but “dispense with” really means that he is over-riding a regulation in each particular issue.

Chairman.—I do not think the Department are fighting very strongly on the “dispense with” part of it.

6. Senator Walsh.—It could not be regarded as a prescribed condition since a prescribed condition must be a positive step. The Department’s case was that it could be so regarded?——That was the line we were taking, but it is very hard to defend it. The prescribed conditions, I take it, are what a builder or person building a house must know—conditions that he has to comply with. The dispensing mostly occurs in rural areas where individuals are building houses. In big building schemes, the conditions are complied with substantially very often.

7. Chairman.—If no other member has any question to raise on this first point, I will pass on to the second point, which deals with dating. The matter arises in connection with the Local Government (Dublin) (Temporary) Act, 1948 (Continuance No. 1) Order, 1954, and the concrete question is whether or not the required consent of the Minister for Health was given not later than 30th June, 1954. It is provided in the enabling Act that orders must be made before the expiration of the last previous order, in this case, that which expired on 30th June, 1954, and it is also provided that every order made shall be made with the consent of the Minister for Health. The facts in this case are that the order was signed by the Minister for Local Government on 30th June, but the consent of the Minister for Health was not endorsed on it until the 8th July. The question we have to consider is whether the order is valid in these circumstances and whether the order could be said to be made until the consent of the Minister for Health is attached to it, because, if not, it has not been made in June and is invalid. If the consent of the Minister for Health can be made ex post facto, then it is valid. That is really the point at issue and I wonder if you would care to make some observations on it?——My answer to that is that we had received the consent before the Minister for Local Government made the order. I can produce the Department of Health file with the consent, as it were, on it and a letter written from the Department of Health to the Department of Local Government asking the Minister to make an order. The consent that I would rely on is the one in the Department of Health file and the signature of the Minister on the order is a formality after that.

Chairman.—The letter on the file handed to me by the witness is addressed to the Secretary of the Department of Local Government and is dated 23rd June, 1954. It is as follows:—

“I am directed by the Minister for Health to refer to previous correspondence regarding the operation of Part II of the Local Government (Dublin) (Temporary) Act, 1948, and to state that it is considered necessary that the special arrangements in relation to the Chief Executive Officer of the Dublin Board of Assistance should be continued after the 30th June. I am to request, therefore, that the Minister for Local Government will make an Order continuing Part II of the Act in operation for a further period of six months.

(Sgd.) P. Ó CINNEIDE.”

The witness has also handed me a minute initialled by the Secretary of the Department of Health, dated 23rd June, 1954, which indicates that the Minister for Health had on that date agreed that the Minister for Local Government should be asked to make the Order. That seems to me to answer the objections of the Committee—that the consent of the Minister for Health was, in fact, obtained in June, although not published until a later date.

8. Senator Sheehy-Skeffington. — We had a letter from the Department dated 10th February stating that the consent of the Minister for Health was endorsed on the Order on 8th July. It would seem to suggest that endorsement was regarded as the giving of consent.

Mr. Kiernan.—The actual signature of the Minister for Health was endorsed on the Order on 8th July.

9. Senator Sheehy-Skeffington. — Your contention is that the consent itself was really given before that and that this is a mere ratification?——Yes, a mere formality, for the purpose of the publication of the Order.

Chairman.—If the consent was given in a letter of that kind during June, it seems to me on the face of it that the requirements have been substantially complied with.

10. Senator Walsh.—Do you not feel that proof of the request should be set out on the Order?

Chairman.—It might be desirable, but I am not sure that it is specifically laid down in any statutory regulation.

Mr. Kiernan.—We could have said: “The Minister for Local Government, with the consent of the Minister for Health” makes the Order, leaving out the endorsement at the end, but the other practice of putting the endorsement at the end is more usual.

11. Senator Sheehy-Skeffington.—For the purposes of the Committee, if we are to judge whether an Order has been properly made in relation to date, we really must know the date of consent.

Mr. Kiernan.—Yes.

12. Senator Sheehy-Skeffington.—If you had dated the endorsement of the Minister’s consent, what date would you have inserted? Would it have been the date of the request?——No. It would have been the date the Minister signed.

13. Senator Fearon.—Would it not be quite easy to insert the date on which the Minister signified his consent?—— That is the intention in the future.

14. Chairman.—In future, it will be done in that way?——It will. The only objection in the past to doing it that way was that very often there is a big difference between the date on which the Minister signs it and the date on which the other Minister gives his consent. Sometimes it might be a month or two. In relation to some of these housing regulations, that could occur, because a Housing Act is passed and regulations are asked for immediately and we have to get the consent of the Minister for Finance, so that everything is done in a rush and sometimes there might be a considerable difference between the two dates.

15. Senator Sheehy-Skeffington.—But the validity of the Order is tested by the second date?——It is. From the point of view of the Statutory Instruments Act, we count our days from the second date.

Chairman.—My feeling is that Mr. Kiernan has answered our objection and I do not see that there is anything to be gained by pursuing the matter further here.

Senator Sheehy-Skeffington.—I think a reasonable contention has been put before us.

Senator Walsh.—Mr. Kiernan has satisfied the Committee of the authority for the Order.

Chairman.—I think he has put the case for the Department and that there is a case. He has told us what the facts were and it is then a matter of interpretation as to whether these facts complied with the necessities of the case or not.

The witness withdrew.