Committee Reports > List of Committees > Seanad > 1956 > Select Committee on Statutory Instruments > Report No. 02 (1956) - Statutory Instruments

APPENDIX I.

Rules of Procedure (Defence Forces), 1954 (Amendment) Rules, 1955 (S.I. No. 58 of 1955).

21 Meán Fómhair, 1955.

Rúnaí,

Roinn Cosanta.

The Select Committee on Statutory Instruments have had under consideration the Rules of Procedure (Defence Forces), 1954 (Amendment) Rules, 1955 [S.I. No. 58 of 1955] which was presented to Seanad Éireann on 4th April, 1955.

They note that under section 8(1) of the Defence Act, 1954, any regulations which involve a direct or indirect charge on or a payment into public funds shall be made with the consent of the Minister for Finance. Section 240 of the Defence Act, 1954, under which the instrument under consideration was made empowers the Minister for Defence to make rules of procedure in relation to certain specified matters. It is not clear to the Committee what powers the Minister has under section 240 to make rules which impose a charge on public funds by way of payment of witnesses’ expenses. Since the Committee have to consider whether under their terms of reference they should draw the special attention of the Seanad to the Order either on ground (i), viz. that it imposes a charge on public revenues, etc., or 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, they would be glad to have a memorandum on this point.

As the Committee would like to consider the matter at their next meeting they would appreciate a reply by the 4th October, 1955.

Cléireach an Rogha-Choiste.

Memorandum from Department of Defence.

1. When Rules of Procedure (Defence Forces), 1954 (S.I. No. 243 of 1954) were made originally no provision was made therein for the payment or tendering to a witness not subject to military law of the reasonable expenses of his attendance although it was realised that, unless such expenses were paid or tendered, a person who defaulted in attending did not commit an offence under Section 208 of the Defence Act, 1954. It was felt by the Department of Defence that this matter could be dealt with administratively in the rare case in which a witness not subject to military law would refuse to attend without payment in advance of his expenses.

2. The point did not come specifically before the Attorney General until Defence Forces (Summoning of Civilian Witnesses) Regulations, 1954 (S.I. No. 297 of 1954) were being made pursuant to sections 183 and 184 of the Defence Act, 1954. At this stage the Attorney General advised as follows:—

“A person not subject to military law summoned or ordered to attend as a witness before an authorised officer or a commanding officer (Sec. 183) or a court-material (Sec. 208) who makes default in attending is not guilty of an offence under either of the Sections mentioned unless the reasonable expenses of his attendance have been paid or tendered to him.

In my opinion this entails (a) that Article 4 of the Defence Forces (Summoning of Civilian Witnesses) Regulations, 1954, should not be deleted and (b) that the omission of any provision respecting expenses from Rule 84 and Appendix X of Rules of Procedure (Defence Forces), 1954 should be rectified at the earliest opportunity.”

3. Insofar as Section 183 of the Defence Act, 1954, is concerned, the Attorney General’s advice was followed by including paragraph 4 in the Defence Forces (Summoning of Civilian Witnesses) Regulations, 1954 (S.I. No. 297 of 1954) and, insofar as section 208 of the same Act is concerned, his advice was followed by the making of Rules of Procedure (Defence Forces), 1954 (Amendment) Rules, 1955 (S.I. No. 58 of 1955).

4. As the Defence Forces (Summoning of Civilian Witnesses) Regulations, 1954, being regulations, came within the scope of subsection 8 (1) of the Defence Act, 1954 (“Any regulations made under this Act which involve a direct or indirect charge on or a payment into public funds shall be made with the consent of the Minister for Finance”), the consent of the Minister for Finance to these Regulations was formally conveyed under his official seal on the Regulations themselves. On the other hand, in the case of Rules of Procedure (Defence Forces), 1954 (Amendment) Rules, 1955, as the Rules of Procedure were not regulations, and as no provision in section 240 corresponded to that in section 8 (1) of the Act of 1954, the Parliamentary Draftsman declined to have any express consent under the seal of the Minister for Finance provided for in the Rules. The concurrence of the Minister for Finance in the terms of Rules of Procedure (Defence Forces), 1954 (Amendment) Rules, 1955, was, however, sought and obtained as well as his sanction for a scale of allowances and expenses to be applied in the case of both Defence Forces (Summoning of Civilian Witnesses) Regulations, 1954 and Rules of Procedure (Defence Forces), 1954 (Amendment) Rules, 1955.