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MIONTUAIRISCI NA FIANAISE(MINUTES OF EVIDENCE)Dé Luain, 23 Aibreán, 1956.Monday, 23rd April, 1956.Chruinnigh an Coiste ar 11 a.m. The Committee met at 11 a.m.
Mr. F. C. Connolly (Department of Justice) called and examined.1. Chairman.—We have asked you, Mr. Connolly, to help us in regard to three Statutory Instruments about which we are in some difficulty in so far as the dates are concerned. You know what they are—Garda Síochána Allowances Order, 1955, Garda Síochána Pay Order, 1955, and Garda Síochána Pay Order, 1956. The question on which we want to get assistance is what is the critical date for the making of these Orders. Two Ministers signed them. We are inclined to think, on the reading of Section 12 of the Statute, on the practice of other Departments, on the opinion of our own Committee on an earlier report and on the British Committee on Statutory Instruments that the critical date is that of the second signature, when the assent of the Minister for Finance is notified. In regard to some of these Instruments, though not all, your Department take the view that the earlier date is the critical date. We were wondering if you could explain to us why that practice is followed in relation to some Orders and why, if it is correct in regard to some Orders, it is not correct in respect of all Orders. Can you explain the position, Mr. Connolly?—The first time this really came into question was in connection with the Garda Síochána Pensions Order, 1951. That Order was made on the 29th December, 1951. It was signed by Deputy Boland, who was then Minister for Justice, and by Deputy MacEntee, the then Minister for Finance, on the 2nd January, 1952. It was stated in that Order:— “In this Order the expression ‘person pensionable in accordance with this Order’ means (a) a person who becomes a member of the force after the critical date, or (b) a person who was serving as a member of the force on the critical date.…” We went to the Attorney General and asked him about that matter. We pointed out to him that he would note the Order was signed by the Minister for Justice on the 29th December, 1951, and countersigned by the Minister for Finance on the 2nd January, 1952. Here is the relevant extract:— “The Minister desires to be favoured with the opinion of the Attorney General as to which of the two dates should be construed as the critical date for the purposes of the Order.” In reply to that query we were informed:— “In my opinion the Order was made on the 29th December, 1951, and this is the Instrument to which the Minister for Finance has signified his approval. The critical date, therefore, is the 29th December, 1951.” The then Attorney General, Mr. Carroll O’Daly, agreed to that. 2. Chairman.—So you are taking your stand on the opinion of the Attorney General?—Yes. 3. You would agree that the opinion of the Attorney General—although a matter to be treated with great respect—is not, however, binding or final or infallible in this matter?—I am hardly in a position to comment on that. We have to take the only legal advice which is available to us, namely, that of the Attorney General. The 1951 Order was actually signed by Deputy MacEntee on the 2nd January, 1952. It was given a 1951 number. I think there have been other Orders, but I could not find them at the moment. 4. Senator Sheehy-Skeffington.—Has Mr. Connolly any idea of what the basis was for that ruling of the Attorney General?—We have not. It was rather important because the critical date on that Order was an important one. 5. In a court of law, it would be essential for the Attorney General not only to give his opinion but to say the basis for it. The Committee are curious to know the basis for it. Can you help us?—I could not tell you that. Chairman.—We do not question that the Department of Justice is acting correctly in following the opinion of the Attorney General but we are inclined to think that in this particular opinion possibly the Attorney General may be incorrect. 6. Senator Sheehy-Skeffington.—Could Mr. Connolly give to this Committee the full advice of the Attorney General on that particular case, the full document in question? We have the power to ask for documents?—I read it out. 7. Was that the total ruling?—Here it is:— “In my opinion the Order was made on the 29th December, 1951… The critical date therefore is the 29th December, 1951.” 8. Chairman.—It is perfectly clear that you acted quite correctly in accordance with the opinion of the Attorney General. The only difficulty we have is that, reading Section 12 of the Police Forces Amalgamation Act, 1925, it does not appear completely clear to us that the first date is the critical date. It would seem to us that the second date is the date on which the Order becomes effective. Furthermore, we notice that your practice in the Department of Justice has not been uniform in that matter. On some occasions you have used the first date and on other occasions you have used the second date. For example, in the Circuit Court Rules, 1955, the signature of the appropriate Rules Committee was in December, 1954. The concurring signature of the Minister for Justice was made in 1955. In that case, you seem to have taken a different view from that of the Attorney General. That is really the reason why we have asked you to come before us to-day. We are rather puzzled when we find an apparent inconsistency in the action of your Department. Furthermore, we find that the actions of your Department are inconsistent with the actions of the Department of Local Government and also, we think, of the Department of Posts and Telegraphs. Have you anything further to say?—I think the only thing I can do now is to refer the matter back again to the Attorney General. I am afraid I am not in a position to go into the exact legal aspect of it. I shall refer the matter back. I can tell the Attorney General what has been said to me by the Committee and ask him about the matter and then convey his ruling back to the Committee. 9. Senator Sheehy-Skeffington.—There is a point which was made and on which it would not be fair to ask the Attorney General to reply, that is, why, having got the view of the Attorney General in 1951, the Department observed it in some cases and did not observe it in others. What is the view of the witness?—The point which I think was raised by the Committee was that they queried the ruling of the Attorney General. 10. What about the Chairman’s recent question?—I cannot answer that. I did not deal with these particular Orders myself. There may be some other point in connection with the matter of which I am not aware. Only one Minister is concerned. I am sorry I cannot help the Committee on that point as this is the first time I have actually seen these Orders. 11. I do not think the Attorney General can tell us why the Department of Justice sometimes follow his ruling and sometimes do not. I think that only the Department of Justice can tell us that? —I shall inquire into that matter. 12. Chairman.—Has there been any opinion from the Attorney General since this opinion in regard to the 1951 Order? —No. 13. Will you agree with me that, if the later date is the critical date, then at least two of these Orders appear to be wrongly dated in the titles? If, on the other hand, the earlier date is the critical date these Orders have been furnished late to the Dáil and Seanad. They should be furnished within seven days from the making thereof, and if the earlier date is the critical date then they should not be withheld until the second date which, in the opinion of the Attorney General, is apparently a matter of no importance. What is your view?—I am afraid I find it difficult to answer that at this stage. I see the point. I suppose the Order is not completed until the Minister for Finance puts his signature to it. 14. Let us assume that the Order is made by the Minister for Justice and that it is then submitted at a later date to the Minister for Finance. Let us further assume that for some reason the Minister for Finance refuses to give his sanction. If the Attorney General’s interpretation is correct, the Order was in being and in force during an indefinite period until it is put out of force by the refusal of the Minister for Finance to sanction it. Is that in your opinion a satisfactory state of affairs for your Department or the people affected by the Order?—The possibility of a thing like that happening is very remote. The Order would be agreed by the Departments before either Minister would sign it. 15. That brings me to another point. Is it the universal practice that the Minister for Finance should be consulted before the Minister for Justice makes an Order? —Yes, because of the financial implications. 16. In that case, the sanction of the Minister for Finance is obtained before the making of the Order and not on the date which appears on the face of the Order as the date given by the Minister. Is that so?—Perhaps you might put it like this. The sanction of the Minister for Finance to the matter which is put in the Order is obtained before the Order is made. Consequently, there is unlikely to be any disagreement on the matter contained in the Order at the time he signs it. 17. Senator Sheehy-Skeffington.—I take it that Mr. Connolly has adverted to the Report of this Committee last year in which we had the Legal Adviser to the Department of Local Government before us. The reference is page 37 of the Minutes of Evidence. Arising out of the same point, you will notice on page 37, from Question 11 onwards, that it was pointed out to Mr. Kiernan, that, for the purposes of the Committee, we had to judge whether, in relation to the date, the Order had been laid sufficiently quickly before us. Consequently, we must know the date of consent. Then we asked Mr. Kiernan which date he would regard as the operative date. He agreed that the second date was the operative date though he said, in answer to Question 14, that the time lag between the two dates might be sometimes a month or two: that is ten lines from the end of that page. It has been our practice to insist that the laying of an Order before us within a reasonable time shall be interpreted as meaning within seven days. If we are to count it from the first date, you will see by Mr. Kiernan’s evidence that it would not be a question of seven days but might even be months?—It could be in that case. You will appreciate that the Committee has to decide whether a thing has been laid before us in reasonable time and we have to know which is the effective date. We took the trouble to ask Mr. Kiernan, the Legal Adviser to the Department of Local Government, which date we should consider to be the effective date. He agreed it should be the second, even in cases where the second date was not put on the Order. Chairman.—I do not think we can pursue that point much further. There is a clear difference of opinion between the Attorney General and the other Departments and the Statutory Instruments Committee and the British Statutory Instruments Committee. Unless some other member wishes to raise a point, I should like to pass on to the next point. 18. Senator Fearon.—We have three instruments under consideration to-day. Was the Attorney General asked for a ruling regarding the effective date of these three instruments? — He has not been asked yet. I propose to do it now. It is better for me to go to him with what the Committee had to say regarding the matter and not have to go twice. I shall do so bearing that in mind. 19. I presume that no ambiguity can arise in connection with the making of an Order and the effective date of the operation of the Order. I can see that under certain circumstances an Order could be made and yet not be in a condition in which it could be operated necessarily. Can there ever be any confusion about the use of the term “may”? —Is not that where the confusion arises at this moment in this particular case? In the case of the Pension Order of 1951 the operative date was decided to be the date it was signed by the Minister for Justice. It was looked upon for that reason as an Order of that year. Senator Fearon. —The sooner we can differentiate between the making and the conditions of operation the better. 20. Senator Sheehy-Skeffington.—In relation to that, I wonder has Mr. Connolly referred to the phrase in the preamble of the making of these Orders “the signature of the Minister for Finance testified by his official seal affixed thereto do hereby order as follows”. Does not the word “hereby” mean that it is only by his signature that the Minister approves although he may have informally approved?—I agree with that. 21. It amounts to this. We regard the placing of the Minister’s signature on these documents as being something more than a mere formality. Do you agree?— Definitely. 22. I should like to know at what point is it the practice of the Department to put these Orders on sale, to make them available to the public?—As soon as we can. A couple of days after we have mimeographed copies. 23. A couple of days after the Minister for Finance’s signature?—Yes. 24. But not before?—No. 25. In theory, it would be possible, if we regard the first date as the operative date, for a member of the public to be affected by an Order and be in danger of a penalty for as much as a couple of months before he has a chance of seeing the Order. That is, if you regard the first date as the operative date and do not make the Order available to the public until the second date. Would that not follow?—Possibly. 26. Could it not be so in all circumstances? — In connection with the particular Order we happen to be dealing with the question of penalty does not arise. It could possibly arise in other Orders. 27. Would it not arise in every Order in which there was a penalty and which affected the ordinary member of the public. Would not the public be under penalty without having been warned?— That would be possible. 28. Would it not be necessarily so?—I am not altogether quite clear. It could possibly be so. It is your practice to regard them as being in force from the first date and necessarily then an Order containing a penalty would place that penalty on the public before the public was aware of it. Sometimes the period would be as long as a couple of months apparently. Chairman.—I think we have pursued that point far enough. I wonder would Mr. Connolly call the Attorney General’s attention to what we regard as a dilemma. As Senator Sheehy-Skeffington says, if the first date is the critical date, the Order should be readily available immediately after that date. On the other hand, if the second date is the critical date some of the Orders before us have been wrongly dated. The Minister cannot have it both ways. If there are no further questions we will pass on to the next point. 29. Senator Walsh.—I should like to refer Mr. Connolly to the District Court Rules, 1942. The rule making authority signed those rules on the 28th May, 1942. The signature of the Minister for Justice at that time was not appended until the 9th July, 1942. Might I suggest, Mr. Connolly, that those rules could not have come into force until they were signed by the Minister and that was six weeks subsequently? Does Mr. Connolly suggest that the Order can be implemented once the first Minister has signed them?—No, we do not. They are not implemented until the Minister for Finance signs them. If the Order does not prescribe a definite date for the operation of the Order, then it would invariably be operated from the day the Minister for Justice signs it. I cannot speak for every Department. 30. Senator Sheehy-Skeffington. — At which date does Mr. Connolly regard the Order as becoming a valid Order?—It becomes a valid Order when signed by the Minister for Finance. In other words we do not operate the Order until the Minister for Finance signs it. We operate it from the date the Minister for Justice has made it. 31. Senator Walsh.—That means it is made retrospective to the first date?—It is not made retrospective. We do not look upon the Order being in force until two signatures are appended. 32. Senator Sheehy-Skeffington. — If that affected the public it might constitute an injustice?—It could work both ways perhaps. 33. You do not recognise it as being valid until the second date. Once it becomes valid, a member of the public could be affected by it sometimes for a couple of months retrospectively?—That was the point you were making earlier. 34. That could constitute a grave injustice, could it not?—Possibly in some cases it might. 35. It possibly could constitute a grave injustice. Before passing from this first point, there have been some questions which Mr. Connolly has not been able to answer offhand. Can I take it that Mr. Connolly will be able to send us a memorandum or note arising out of these further inquiries?—I will inquire from the Attorney General in regard to the points made. 36. Apart from that point, there were other points you had to answer and you said that you sometimes operate the ruling and sometimes do not. We would want to have another note on that point. There is not uniformity of practice within the Department of Justice. In your letter to us you refer to the Attorney General’s ruling as being an extract from his ruling. We would want to have his full ruling?—I have read it all out. 37. Your own phrase was that it was an extract?—“I agree as to the critical date initialled C.O.D.” That is what I said. 38. It was, in fact, the whole significant matter?—Yes. There were also the words: “If you agree the papers may go to the Parliamentary Draftsman.” It was not part of the opinion. It was only a directive. 39. There is a big difficulty attaching to the fact that everything up to the present has been based on two contentions. The first is that the valid date is the second date. Secondly, it is reasonable to ask that the Orders should be put before us within seven days. It will be recognised that if this view is now to be changed — nobody has objected to it before—it would upset quite a lot that has been done and it may make it very difficult for us to proceed?—Do not take it that I object to anything said. 40. We have been acting on these two assumptions and if we were obliged to regard the first date as the operative date it would in practice become very difficult to insist that we be given an Order within seven days. You recognise that?—I see your point. 41. Chairman.—The second point is in regard to the recital about conforming with preliminary requirements. There has been a difference in opinion apparently between the Attorney General and what appears to this Committee to be desirable at any rate. Section 12 of the Act of 1925 states: “Before making an Order under this section a Minister shall cause a draft of the Order to be submitted to the several representative bodies, etc.” We have taken the view that it would certainly be desirable, although it might not be strictly necessary legally, that there should be some recital somewhere that the condition had been complied with. The parties affected by this Order are entitled to know where these preliminary inquiries have been made. That is really the second point. I was wondering if you had any observations? — The Parliamentary Draftsman decided that these long recitals are not necessary and did not put them in. 42. Senator Sheehy-Skeffington. — I think there is confusion there because it is not a question of a recital of powers but a question of saying: “We have complied with all the requirements that are placed upon us by the Oireachtas”?—If the Minister says he made them in exercise of powers conferred on him by Section 12 and quotes Section 12, it can be assumed that he has dealt with every matter that is covered by Section 12. 43. That refers to powers. He may be required in the exercise of those powers to fulfil certain requirements and make certain consultations. It seems to me that a statement of the fact that he had complied with all the requirements is desirable?—He could not make the statement if he had not done that and he would not be exercising his powers if he did not fulfil the requirements. As regards the recital, it is the Parliamentary Draftsman who is concerned and I could put the point again to him whether he would consider that. The point really is that if that was put in and anybody queried it you would still have to prove whether it was done. The fact that is was recited does not make it any more definite. You could put anything in the recital and you would still have to prove that you had complied with certain things. 44. I would like to inquire from Mr. Connolly why his latest letter to us did not, in fact, advert to the committee’s recommendation or indicate why the practice which has been pretty generally adhered to has been departed from?—I thought that letter was sufficient because it was the Parliamentary Draftsman that drafted the Order and dealt with all the other matters, and we were satisfied with his powers in that respect. We are more or less in his hands regarding anything of that kind. If you like to put it this way: the form of the Order is really a question for the Draftsman as distinct from the matter in it. 45. You will recognise that, for the purposes of this committee, checking whether the requirements and the duties have been complied with, it would be convenient if, in every Order where they had been complied with, that would be stated? —Yes. I was just wondering whether I might suggest that something to the effect that “having consulted the representative body,” could be inserted in the recital in future. 46. It is a question of the statement of compliance with requirements?—I could suggest that this could be done in future when we are making Orders under Section 12 and I think also Section 13. 47. Chairman—You cannot be asked to do any more than that. There is a slight difference of opinion between the Parliamentary Draftsman, the Attorney General and ourselves and if you would undertake to draw their attention to the fact that we would consider it desirable that these recitals should be made, that is all we can do at this stage?—I will do that. 48. Senator Walsh.—Could Mr. Connolly state how the validity as to compliance would be tested in court?—We would have to produce the original documents showing that the representative body had been written to and also the original reply of the representative body and if necessary we could bring the representative body into court to prove that they had seen an Order or not seen it. It would involve a lot of trouble but it would not be insurmountable. 49. It is a rather cumbersome procedure?—Yes, but the fact that the statement would be written in in the Orders does not make it any more definite except that it is some evidence that there was compliance with the requirements; it would hardly be put in if they were not complied with. However, if anybody says that that should be proved we would have to act as I have suggested. 50. Senator Sheehy Skeffington—It would be a good thing that any Order requiring such compliance should not merely be valid but appear valid?—Yes, in other words, let justice not only be done but appear to be done. 51. Chairman—Will you draw their attention to that?—Yes, most certainly. Does anybody wish to ask Mr. Connolly any further questions? Thank you, Mr. Connolly, for your assistance in the matter. The witness withdrew. |
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