Committee Reports > List of Committees > Seanad > 1955 > Select Committee on Statutory Instruments > Report No. 01 (1955) - Statutory Instruments

REPORT.

PART I.

1. Since their appointment, the Select Committee have examined one hundred and two statutory instruments, which are listed in the Proceedings. They decided that the special attention of Seanad Éireann should be drawn to sixteen of these instruments, details of which are given in Part II.

2. In addition to drawing attention to specific instruments, the Select Committee have made general observations, mainly on what appear to them to be defects in form common to many instruments. Their observations are contained in Part III.

3. In accordance with the Order of Reference, the Select Committee, before reporting, afforded to each Government Department concerned an opportunity of furnishing such explanations as the Department thought fit. The memoranda furnished by Departments in consequence will be found in Appendices I to XV. Oral evidence taken in respect of two instruments will be found in the Minutes of Evidence.

PART II.

4. The Select Committee have not found it necessary to draw special attention to any instrument on grounds (i), (ii) and (iv) of the Order of Reference.

5. On ground (iii), viz., “that it appears to make some unusual or unexpected use of the powers conferred by the Statute under which it is made,” the special attention of Seanad Éireann is drawn to the following two instruments:—

Housing (Grants to Housing Authorities) Regulations, 1954 (S.I. No. 174 of 1954).

Article 4 (2) of these regulations purports to enable the Minister for Local Government to dispense with certain prescribed conditions in relation to the making of housing grants. The evidence given by the Departmental representative (see Minutes of Evidence, Questions 1 to 6) suggests that this provision is ultra vires the parent Statute.

The Select Committee appreciate that a dispensing clause may be administratively indispensable for the effective operation of the grant provisions (see minute from Department, Appendix I). They are of opinion, however, that an unrestricted dispensing power is undesirable in the context. Members of the Seanad may, therefore, consider that the proper course to follow where there is need for such a dispensing power, is for the Minister to put suitable legislative proposals before the Oireachtas.

Housing (Repair and Improvement Works) Regulations, 1954 (S.I. No. 200 of 1954).

(a) Section 12 (4) of the enabling Act specifies the ground on which an appeal lies to the Minister for the purpose of grants under the section, viz., refusal by a housing authority to issue a certificate The regulations purport to specify an additional ground, viz., neglect by a housing authority to certify. The Select Committee appreciate that the additional ground may be necessary in order not to render the section inoperative in a particular case. Their view, however, is that the Minister’s power to make regulations for the purposes of the section does not extend to the prescription of the additional ground.

(b) The Schedules to these regulations appear below the signature of the Minister and might be thought not to have been themselves attested by the Minister (see, in this connection, paragraph 10, Attesting of Schedules).

Correspondence regarding this instrument is given in Appendix II.

6. On ground (v), viz., “that there appears to have been unjustifiable delay either in the laying of it before Seanad Éireann or in its publication”, the special attention of Seanad Éireann is drawn to the following six instruments:—

Standard Specification (Men’s Heavy Boots) (No. 2) Order 1953 (S.I. No. 317 of 1953).

Order made: 14th October, 1953. Laid: 11th June, 1954.

The Department’s explanation of the delay is given in Appendix III,

Rodents and Insectivora (Restriction on Importation) Order, 1954 (S.I. No. 114 of 1954).

Order made: 29th May, 1954. Laid: 6th August, 1954.

The delay arose from the fact that the Department had interpreted the relevant statutory provision as not requiring the laying of instruments of this type (see Appendix IV (2) ). It will be noted (Appendix IV (6) that the Attorney-General considers that the provision in regard to laying does not go to affect the validity of the orders, apparently because it is a directory, rather than a mandatory, provision. The effect of the distinction is that failure to comply with a directory provision would not invalidate an instrument, whereas failure to comply with a mandatory provision would result in nullity. The Select Committee are not concerned with the distinction as such, but with its effect on the element of control which the Oireachtas doubtless thought to retain by providing that instruments shall be laid. If the Attorney-General’s view is the correct one, parliamentary control might be avoided by the simple expedient of not laying. It is, therefore, a matter for consideration whether, in future legislation, the intentions of the Oireachtas in regard to the control of delegated legislation should not be safeguarded.

Garda Síochána Pay Order, 1954 (S.I. No. 182 of 1954).

Order made: 10th August, 1954. Laid: 31st August, 1954.

The Department’s explanation is given in Appendix V.

Importation of Knitted Woollen Wearing Apparel Order, 1952 (Revocation) Order, 1954 (S.I. No. 186 of 1954).

Order made: 26th August, 1954. Laid: 14th September, 1954. It is put forward in the explanation furnished (Appendix VI) that a factor in the delay was the necessity for urgent examination of trade representations in regard to the effect of the order. While appreciating that urgent examination was necessary, the Select Committee consider inappropriate the course followed, which made the order available, on publication, for interests concerned while, in effect, withholding it from the consideration of Seanad Éireann by delaying the laying of it.

Control of Exports Order, 1954 (S.I. No. 193 of 1954).

Order made: 30th August, 1954. Laid: 14th September, 1954. The Department’s explanation is set out in Appendix VII.

Garda Síochána Allowances Order, 1954 (S.I. No.294 of 1954).

Order made: 21st December, 1954. Laid: 26th February, 1955. The Department’s explanation is set out in Appendix VIII.

7. On ground (vi) viz., “that for any reason its form or purport calls for elucidation,” the special attention of Seanad Eireann is drawn to the following eight instruments:—

Vocational Education Act, 1930 (Grants under Section 53) Regulations, 1954 (S.I. No. 139 of 1954).

The date of this instrument cannot be determined from it, since the date of consent of the Minister for Finance is not stated. This omission occurred in other instruments, but the required information was furnished by the Department concerned on request. In this case, precise information could not be furnished with the result that the date of the instrument is not known (see Appendix IX).

Local Government (Dublin) (Temporary) Act, 1948 (Continuance No. 1) Order, 1954 (S.I. No. 142 of 1954).

It was necessary to the validity of this instrument, which was made by the Minister for Local Government, that the consent of the Minister for Health be given to it not later than 30th June, 1954. Consent was, in fact, endorsed on it on 8th July, 1954 (see Appendix X (2) ). The Department regard the actual endorsing as a formality and base the validity of the order on the fact that the Minister for Health had agreed on the 23rd June that the Minister for Local Government should be asked to make the order (see Minutes of Evidence, Questions 7 to 15).

Wheat Order, 1954 (S.I. No. 148 of 1954).

The issue raised by the Select Committee was that the order did not contain a provision requiring inspectors to carry, or produce on request, documents identifying themselves as persons duly appointed for the purposes of the order. In view of the wide powers, including right of entry to premises and the right to demand certain information, granted to inspectors, the Select Committee are of opinion that, in the public interest, a mandatory provision covering the point should have been included in the instrument. It will be noted (see Appendix XI (4)) that the Department will bring the matter to the notice of the Attorney-General in connection with the drafting of the Wheat Order for 1955.

Wild Birds (County Clare) Order, 1954 (S.I. No. 167 of 1954).

National Monuments (Preservation) Order No. 202 of 1954.

National Monuments (Preservation) Order No. 203 of 1954.

Each of the above orders was signed by an official of the Department concerned, but it was not indicated that the official in each case was authorised to authenticate the seal of the responsible Minister. It will be noted (see Appendices XII and XIII) that the Attorney-General’s view is that the signatory of an instrument, other than a Minister, should in future describe himself as a person authorised, and that the matter is being brought to the notice of all Departments by the Department of Finance.

Agricultural and Fishery Products (Regulation of Export) Act, 1947 (Export of Poultry and Rabbits) Order, 1950 (Temporary Amendment) Order, 1954 (S.I. No. 247 of 1954).

The title of this instrument is precisely the same as that borne by an instrument made earlier in the same year. The Department state (see Appendix XIV) that, in practice, a distinct identification of an order is obtained by reference to both title and statutory instrument number. It is the Committee’s view, however, that the purpose of the title of an instrument is, apart from indicating the subject matter involved, to enable it to be distinguished from other instruments. This view is borne out by the established practice of giving distinguishing titles to instruments and by the Department’s statement that the practice would have been followed in this case, had the previous order been adverted to.

Post Office Savings Bank Regulations, 1921 (Amendment) Regulations, 1954 (S.I. No. 277 of 1954).

The Select Committee considered, and the Department have agreed (see Appendix XV), that these regulations are null and void on the ground that the statutory requirement that a draft thereof be laid before each House for a period of twenty days of session before the making of the regulations, was not complied with.

PART III.

8. Requirements preliminary to the making of instruments.

Reference will be found in the correspondence on the Garda Síochána Allowances Order, 1954 (Appendix VIII) to the fact that it was not stated in the instrument, that preliminary statutory requirements, on compliance with which its validity appeared to depend, had been complied with. A second similar case which came to the notice of the Select Committee was the Dublin County Borough (Electoral Areas) Order, 1954 (see Appendix XVI). Preliminary requirements of this nature are not uncommon; instruments made over the past twelve months provide a variety of examples—a draft may be required to be submitted to certain bodies and any representations made considered¹; the responsible Minister may be required to consult an advisory committee,² representatives of employers and workers,³ professional bodies,⁴ or members of the Judiciary⁵; the Minister may have to be satisfied in regard to certain matters before making an instrument⁶; the receipt of an application,⁷ or a request,⁸ may be necessary. A further group comprises those many instruments which must be made with the consent of another Minister.

With the exception of the two named above, all of the instruments examined in the categories referred to, contain an appropriate statement of compliance. It will be seen that the requirements vary in degree of importance, but the basic factor—that validity appears to depend on compliance with them—applies to all cases.

It has been put forward in relation to the two instruments in which compliance was not indicated, that such indication on the face of an instrument is not necessary to validity, and that there is a presumption of law in favour of validity. The Select Committee do not argue the merits of these points. Their view is that the question of whether or not compliance should be indicated rests on broader issues as follows: (1) Since, in delegating the power to make instruments, the Oireachtas thought fit to prescribe certain requirements, it is a matter of courtesy that they be informed whether those requirements have been complied with. (2) It is not unreasonable to expect that instruments should appear to be valid on their face. (3) It is likely that, in the absence of a statement in an instrument, evidence of compliance would be required if an instrument were challenged in the Courts. In addition, it is material that, in the discharge of their duties, the Select Committee could properly look for evidence of the validity of instruments in this respect.

It appears, therefore, to the Select Committee that, irrespective of the legal position, a concise statement of compliance should be included in instruments in respect of which the enabling Statutes lay down requirements preliminary to the making of the instruments, and they recommend that this course be adopted.

9. Citation of Statutory Authority.

The exercise of the power of making statutory instruments is invariably limited by the terms of the Statute in which the power is delegated. It is, therefore, important in the public interest that means be available whereby it may be ascertained, in particular by persons affected by an instrument, that the powers delegated have not been exceeded. Of great assistance to this end would be the citation, in addition to the enabling Statute, of the section or sections giving the power to make the instrument and, where appropriate, of other relevant sections. In many Statutes, for instance, one section will be confined to the giving of the general power to make regulations, while the circumstances in which, or the purposes for which, the power may be used will be found in other sections.

The Select Committee found that the practice of citation on the lines indicated was not generally followed. In some instruments, there was cited merely the Statute in which the power was to be found, while in most, including such as named specific sections, there was cited in addition “every and any power in this behalf enabling.” The inclusion of this phrase can make a citation valueless as a means of ascertaining the powers under which an instrument is made. In framing instruments, the authorities concerned must be aware of the powers which they propose to use and should, therefore, be in a position to cite them with precision.

Apart from its value to persons affected, precise citation is also of value to the Select Committee, who must possess exact information on the powers used if they are to fulfil the duty placed on them, of drawing to the special attention of Seanad Éireann any unusual or unexpected use of powers.

The Select Committee, therefore, recommend that instrument-making authorities should cite the section or sections of the enabling Statute giving the power to make the instrument and, where appropriate, other relevant sections.

10. Attesting of Schedules.

Many of the instruments which the Select Committee have examined, contain schedules which follow the main text. Since the schedules form part of the instrument they appear to require attesting equally with the rest of the instrument.

The Select Committee found that, in two instruments, viz., the Dublin County Borough (Electoral Areas) Order, 1954 and the Housing (Repair and Improvement Works) Regulations, 1954, the schedules appeared below the signature of the Minister and might be thought not to have been themselves attested. The Select Committee have been informed by the Department concerned (see Appendices II and XVI), that there was no particular reason for placing the schedules below the signature of the Minister. The Department also stated that there was no recognised practice in this respect. This has not been the Committee’s experience. In most of the instruments examined by the Select Committee, the schedules have preceded the Minister’s signature. They consider that this is the better practice and recommend its general adoption.

11. Attestation by consenting Minister.

The power of a Minister to make instruments is, in many instances, subject to a provision that they be made with the consent of another Minister. In such cases, the giving of consent is necessary to the validity of the instrument. In a number of the instruments examined, while the citations included the phrase “with the consent of the Minister for ...”, consent was not attested on the instrument by the consenting Minister. Actual attestation is not necessary to validity, provided that consent has, in fact, been given. It is, however, necessary if validity in this respect is to be clearly seen; and since, in its absence, consent would require to be proved if an instrument was challenged on the issue of consent, there are strong reasons for the practice of actual attestation. The Select Committee are, therefore, of opinion that the practice should be adopted generally.

12. Dates of Instruments.

The date of an instrument is the date on which it is made. This date is of importance, first, because it is usually the date from which its provisions operate, and secondly because it may determine its validity or otherwise, as in the case of the Local Government (Dublin) (Temporary) Act, 1948 (Continuance No. 1) Order, 1954 (see paragraph 7). It is, moreover, material to the work of the Select Committee if they are to determine whether delay has occurred in the laying of an instrument.

Where only one Minister is involved, no difficulty in regard to the date arises, because the date of signature is invariably stated. Where, however, more than one Minister is involved, as, for instance, where the consent of another Minister is required, the date of the instrument is the date of the last signature in point of time. It is here that difficulty arises since the practice followed hitherto has been not to state the date of consent.

From enquiries made by the Select Committee, it appears that two procedures are used in regard to the obtaining of consent, viz., consent is sought to the instrument in draft, or, the initiating Minister, having signed and dated the instrument, forwards it to the other Minister for his consent. In the first case, the date of the instrument is the date of signature by the initiating Minister, and no difficulty would arise if it were known in respect of a particular instrument that this procedure had been followed. Where the second procedure is followed, it is impossible to determine from the instrument itself what its date is, unless the consent is dated.

The Select Committee are not concerned as to whether one or other of the two procedures is the better. Their concern is to have the date of an instrument determinable from the face of the instrument. This aim would be achieved if, in all cases, each Minister concerned dated his signature, and the Select Committee accordingly recommend the general adoption of this course.

13. Delay in laying.

The statutory provision most commonly to be found in regard to the laying of instruments is the following:—

“Regulations shall be laid before each House of the Oireachtas as soon as may be after they are made and, if a resolution annulling the regulations is passed by either House within the next twenty-one days on which that House has sat after the regulations have been laid before it, the regulations shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.”

Where this provision applies, a member of Seanad Eireann may put down a motion for annulment, only after the instrument has been laid, although the instrument will have been in force from the date of making. It follows that the element of control retained by the Oireachtas depends, for its effectiveness, on the laying of instruments within the shortest possible period after making. To state the extreme case, it is possible, through delay in laying, to have an instrument made, under which irrevocable action may be taken before the Oireachtas will have had an opportunity of considering the instrument. The Select Committee had to have regard to this point when considering delays. So far as they are aware, the limiting force of the phrase “as soon as may be”, applicable to laying, has not been legally defined, but in assessing what limit could be put to the period within which laying might be required, they found of assistance the provision contained in section 3 (1) of the Statutory Instruments Act, 1947, which requires the sending of copies of instruments to which the Act primarily applies, to certain specified bodies (not including the Houses of the Oireachtas) within seven days after making. They infer from this provision that it is practicable to lay, at latest, within seven days. They have, therefore, adopted this period as a criterion, though, for the reasons already stated, they would wish to see the period between making and laying reduced even further.

(Signed) GEORGE O’BRIEN.

Chairman

5th May, 1955.

¹ Garda Síochána Pay Order, 1954; Agricultural Wages (Minimum Rates) Order, 1953 (Revocation) Order, 1954.

² Therapeutic Substances (Amendment) Regulations, 1954.

³ Night Work (Bakeries) (Exceptional Work for Limited Periods) Regulations, 1954.

⁴ Labourers Order, 1954.

⁵ July Summonses Order, 1955.

⁶ Consular Conventions Act, 1954 (United States of America) Order, 1954.

⁷ Wild Birds (County Dublin) Order, 1954.

⁸ An tOrdú Iascaigh (Feidhmeanna Aire a Tharmligean), 1954.