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REPORTPART I.1. Since the issue of its First Report,* the Select Committee has examined one hundred and sixty statutory instruments which are listed in the Proceedings. It has decided that the special attention of Seanad Éireann should be drawn to twenty-five of these instruments, details of which are given in Part II. 2. In addition to drawing attention to specific instruments, the Select Committee has made observations in regard to statutory instruments generally. It has also made observations in regard to a certain class of instruments, i.e., Defence Force Regulations. These observations are contained in Part III. 3. Before reporting, the Select Committee, in accordance with its Order of Reference, afforded to each instrument making authority concerned an opportunity of furnishing such explanations as the authority thought fit. The Memoranda furnished are set out in Appendices I to XVII. Oral evidence taken in respect of three of these instruments will be found in the Minutes of Evidence. PART II.4. The Select Committee has not found it necessary to draw special attention to any instrument on grounds (ii), (iii) and (iv) of the Order of Reference. 5. On ground (i) “That it imposes a charge on public revenues, etc.” the special attention of Seanad Éireann is drawn to the following instrument:— Rules of Procedure (Defence Forces), 1954 (Amendment) Rules, 1955 [S.I. No. 58 of 1955]. These Rules were made under the Defence Act, 1954. Subsection (1) of section 8 of this Act reads as follows:— “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.” Since the passing of the Defence Act, 1954, the Defence Forces (Summoning of Civilian Witnesses) Regulations, 1954 [S.I. No. 297 of 1954], have been made and consenting sanction attested thereto by the Minister for Finance in accordance with subsection (1) of section 8 of the Act. The Rules to which the attention of Seanad Éireann is now drawn also impose a charge but the attesting sanction of the Minister for Finance is not indicated. The Department’s explanation (see Appendix I) is that the instrument, being Rules and not Regulations, does not come within the scope of subsection (1) of section 8 of the Act. Although it was not required by statute to do so the Department states that the prior sanction of the Minister for Finance was sought and obtained for the making of the Rules. The special attention of Seanad Éireann is drawn to the instrument as Rules of Procedure are not subject to the usual requirement laid down by statute for instruments which impose a direct charge on the revenue, i.e., that the prior consent of the Minister for Finance be obtained. 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 seventeen instruments:— National Monuments Preservation Orders, Nos. 210 to 219 of 1955. Orders Made: 27th July, 1955; Laid: 2nd September, 1955. Correspondence regarding these ten Orders is given in Appendix II. Imported Butter (Maximum Wholesale Prices) Order, 1954 (Revocation) Order, 1955 [S.I. No. 25 of 1955]. Order Made: 17th February, 1955; Laid: 28th February, 1955. The Department’s explanation is given in Appendix III. Consultative Health Committee (Dublin, Cork and Waterford) (Amendment) Regulations, 1955 [S.I. No. 31 of 1955]. Order Made: 1st March, 1955; Laid: 10th March, 1955. The Department’s explanation is given in Appendix IV. Customs Free Airport (Extension of Laws) Regulations, 1955 [S.I. No. 181 of 1955]. Order Made: 9th September, 1955; Laid: 22nd September, 1955. Vocational Education Act, 1930 (Grants under Section 53) Regulations, 1955 [S.I. No. 210 of 1955]. Order Made: 30th September, 1955; Laid: 18th October, 1955. Foreign Parcel Post Amendment (No. 2) Warrant, 1955 [S.I. No. 221 of 1955]. Order Made: 10th November, 1955; Laid: 23rd November, 1955. The explanations of the Departments concerned in the case of the above three instruments are contained in Appendices V, VI and VII. It will be noted that in each case the delay in presentation is partly attributable to the fact that the instruments required signature by two Ministers. The Select Committee was concerned with this problem from another aspect, i.e., Dates of Instruments, which is the subject of comment in paragraph 13 of Part III of this Report. It is now satisfied that the measures proposed by the Department of Finance in connection with the dating of instruments should also, in future, obviate undue delay in the presentation of instruments where the signature of more than one Minister is required. Garda Síochána (Promotion) (No. 2) Regulations, 1955 [S.I. No. 185 of 1955]. Order Made: 23rd September, 1955; Laid: 13th October, 1955. The Department’s explanation is contained in Appendix VIII. Dublin District Milk Board (Election Day, 1955) Order, 1955 [S.I. No. 153 of 1955]. Order Made: 3rd August, 1955; Laid: 13th August, 1955. The Department’s explanation is contained in Appendix IX. 7. On ground (vi), viz. “that for any reason its form or purport calls for elucidation” the special attention of Seanad Éireann is drawn to the following eight instruments: Flour and Wheatenmeal Order, 1955 [S.I. No. 104 of 1955]. Telex Regulations, 1955 [S.I. No. 229 of 1955]. In connection with the Wheat Order, 1954 (S.I. No. 148 of 1954) the Select Committee stated* that in view of the wide powers granted to inspectors, including the right of entry to premises and the right to demand certain information, it was of opinion that in the instrument a mandatory provision should be included requiring inspectors to carry, or produce on request, documents identifying themselves as persons duly appointed. The Department concerned promised to bring the matter to the notice of the Attorney General in connection with the drafting of the Wheat Order for 1955. (The Select Committee is pleased to note that the following provision has been made in the Wheat Order, 1955 (S.I. No. 137 of 1955), in order to cover this point: “30. An inspector shall be furnished by the Minister with a certificate of his appointment and, when exercising any power conferred by this Order, shall, if requested by any person affected, produce the certificate to such person.” The Select Committee has noted that in the two instruments above to which the special attention of Seanad Éireann is now drawn there are somewhat similar provisions giving powers, including right of entry to premises, to officers or servants of a Minister without making any specific provision in the instruments requiring such persons to carry documents of identity for production when required. The attention of the Departments concerned was, accordingly, drawn to this matter (see Appendix X). In the case of the Flour and Wheatenmeal Order, 1955, the Department states that it has noted the Select Committee’s views and that it proposes to bring the matter to the attention of the Attorney General if and when a further Flour and Wheatenmeal Order is being drafted. As regards Telex Regulations, 1955, the Department has indicated that there is in operation a general system of credentials or passcards identifying individuals as being authorised to work on telephone and telegraph instruments, etc., and that it will consider the question of including specific reference to this system in the next appropriate regulations for any of the telecommunication services when they are being prepared. An tOrdú um an Aire Sláinte (Gníomhaireacht), 1955 [S.I. No. 152 of 1955]. Garda Síochána Promotion (No. 2) Regulations, 1955 [S.I. No. 185 of 1955]. Each of the above Orders was signed by the Secretary to the Government, but it was not indicated that the officer was authorised to authenticate the seal of the Government. It will be noted (see Appendix XI) that the Attorney General has advised that it would be desirable to have an indication of authorisation expressed on the face of the document in future cases of this kind and that arrangements are being made accordingly. Solicitors Act, 1954 (Apprenticeship and Education) Regulations, 1955 [S.I. No. 217 of 1955]. The title of this instrument is precisely the same as that borne by an instrument made earlier in the year. The Council of the Incorporated Law Society agree (see Appendix XII) with the Select Committee’s view that each statutory instrument should bear a distinguishing title. The Council further state that the identity of the titles was over-looked when the second instrument was made but that the point will be borne in mind should occasion again arise. Customs Duties (Miscellaneous Suspensions) Order, 1955 [S.I. No. 54 of 1955]. This Order extended for a further period of one year to 31st March, 1956, the provisions contained in certain Emergency Powers Orders for the suspension of customs duties on certain commodities. The Select Committee raised with the Department concerned the question of the wording of the relevant amending section in this Order. This section reads:— “Article 2 of each of the following Orders (naming three Orders) is hereby amended by the substitution of the ‘31st day of March, 1956’ for the ‘31st day of March, 1955’.” Article 2 of each of the three Orders in question laid down an “appointed period” for which the Order would operate, and these dates refer to periods as far back as 1943, and the words “31st day of March, 1955” do not in fact occur in Article 2 of any of the three Orders. The Department in its reply to this point (see Appendix XIII) stated that Article 2 of the Orders had been extended by subsequent amending Orders. This fact was not indicated, however, in the Customs Duties (Miscellaneous Suspensions) Order, 1955. The Department has indicated that it understands that the absence of a specific reference in the Order to previous amending Orders does not in any way affect the validity of the above Order. It states, however, that it has noted the view of the Select Committee in the matter and that steps will be taken to comply with this view if it is necessary to make any further Customs Duties (Miscellaneous Suspensions) Orders. Garda Síochána Allowances Order, 1955 [S.I. No. 271 of 1955] Garda Síochána Pay Order, 1956 [S.I. No. 15 of 1956]. The Select Committee has already* recommended that 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. The Select Committee found it necessary to take this point up with the Department of Justice in regard to the two Orders above (see Appendix XIV (i) to (iv) and Minutes of Evidence). The Select Committee is pleased to note that the matter has been brought to the notice of the Parliamentary Draftsman, who has now expressed his willingness, in deference to the views of the Select Committee, to include in future such a statement in Instruments of this kind, though he remains of the opinion that it is unnecessary to do so. PART III.8. Explanatory Memoranda. Arising from its consideration of statutory instruments the Select Committee formed the opinion that explanatory memoranda might be furnished with statutory instruments so that the general purport of each instrument should be clearly intelligible to the public. The Select Committee found that in the case of a considerable number of instruments the matter dealt with was of a complicated administrative nature or was the subject of legislation by reference and it felt that some form of explanatory memorandum would be desirable at least in the case of these instruments so as to assist persons to ascertain their effect with reasonable preciseness. The Select Committee had in mind that the memorandum would appear either on the face or at the foot of the instrument accompanied by a clear indication that it did not form part of the instrument and that it had no legal force or significance. It appeared accordingly that any difficulties which might be likely to arise in implementing an arrangement on these lines would be mainly of an administrative character, and it was decided therefore to consult the Department of Finance and through that Department the Attorney General regarding the possibility of implementing such an arrangement throughout the various Departments. The Select Committee’s letter to the Department of Finance together with that Department’s reply will be found in Appendix XV. It will be noted that the Minister for Finance, after full consideration and consultation with the Attorney General, agrees with the Select Committee as to the desirability of publishing an explanatory note with statutory instruments, and that the necessary instructions are being issued to all Departments to give effect to this arrangement. The Select Committee understands that the relevant instructions have since been issued. 9. Citation of Statutory Authority. The Select Committee has already* made certain recommendations in regard to the precise citation of the authority under which each instrument is made. In particular it recommended the discontinuance of the use of the phrase “every and any power in this behalf enabling” on the grounds that it can make a citation valueless as a means of ascertaining the powers under which an instrument is made. Since the publication of its First Report the Select Committee has been in communication with some Departments in regard to the continued use of this phrase (see Appendix XVI). The Select Committee was informed, in the course of correspondence with the Department of Industry and Commerce, that the use of the phrase was a common cautionary practice of long standing whose object was to remedy possible omission in the citation of the specific powers. It was indicated, however, that in future the Parliamentary Draftsman would have due regard to the Select Committee’s recommendation in this matter and that although cases would arise in which the phrase must continue to be employed, the enabling powers in each case would in future be cited precisely. The Select Committee welcomes this step which it considers should be of much assistance in the examination of statutory instruments both to persons affected by instruments and to the Select Committee in the performance of its functions. 10. Defence Force Regulations. Since the issue of its First Report the Select Committee has examined a number of regulations made by the Minister for Defence in pursuance of the Defence Act, 1954. During the course of its examination it observed that (1) these regulations were not included in the official series of Statutory Instruments but were divided into various categories each given a distinguishing number and letter; (2) in view of the large number of amendments to certain instruments codification appeared desirable; (3) they were not put on sale to the general public at the Stationery Office; (4) the citations were not precise; (5) the signature of a consenting Minister where necessary was not dated; (6) schedules and appendices were not attested in accordance with a recommendation in its First Report. The Department was asked for its observations on the six points and its reply will be found in Appendix XVII. The Select Committee notes that (1) the nature of these regulations is such that they could not usefully be included in the official series of statutory instruments; (2) codification of the instruments is in hands and the intention is to have all Defence Force Regulations arranged under suitable headings and produced in the form of a volume or volumes; (3) the regulations were originally placed on sale at the Stationery Office but as an economy measure were withdrawn from that Office in 1926 when arrangements were made for copies required by the public to be available for sale from the Department of Defence; (4) for reasons peculiar to these regulations which are set out at section 4 of the memorandum, the Department are of opinion that the regulations do not lend themselves to precise citation; (5) the date of signature of a consenting Minister will be shown in future and (6) schedules and appendices will be properly attested in future. On the information available the Select Committee feels that the steps now taken by the Department will bring these regulations as much into line with ordinary statutory instruments as the circumstances permit. The Select Committee will await the issue in due course of the codified instruments in volume form. 11. Dates of Instruments. The Select Committee has already* stated that where more than one Minister is involved in the signature of an instrument the date of the instrument is the date of the last signature in point of time. It was confirmed in this belief by evidence given before it to this effect by the Legal Adviser to the Department of Local Government (Questions 10 to 15 in Minutes of Evidence; First Report). The point again arose in connection with the Garda Síochána Pay Order, 1955 (S.I. No. 272 of 1955), which was signed by the Minister for Justice on the 9th December, 1955 and countersigned by the Minister for Finance on the 11th January, 1956. Following correspondence with the Department of Justice [see Appendix XIV (i) to (iv)] and the taking of evidence [see Minutes of Evidence] from a representative of that Department the Select Committee was informed that the Attorney General had advised that the date of the making of the order was the 9th December, 1955 i.e., the date of the first signature. In view of the apparent conflict of opinion in regard to the date of making of instruments which require more than one signature and the fact that the matter will arise from time to time in the various Departments, the Select Committee was of opinion that steps should be taken to ensure that uniformity of practice should be followed. It decided to refer the matter to the Department of Finance pointing out the difficulties which had arisen. That Department stated in reply that the Minister for Finance wished to remove these difficulties and had decided that in such cases in future the relevant instruments should bear a common date of signature [see Appendix XIV (v) and (vi)]. It added that the various Government Departments had been circularised accordingly. 12. Delay in Laying. Notwithstanding the recommendation contained in Paragraph 13 of its First Report in regard to the period within which Instruments should be laid before the House, the Select Committee is concerned to find that it has again to draw the special attention of Seanad Éireann to the fact that in its opinion unjustifiable delay occurred in the laying of seventeen Instruments. It notes, however, that in the majority of replies furnished by the various Departments assurances have been given that steps will be taken to meet the wishes of the Select Committee in future. It feels confident that save in rare cases it will not be called upon to draw the special attention of Seanad Éireann in future to unjustifiable delay in the laying of instruments. (Signed) GEORGE O’BRIEN. Chairman, 21st November, 1956. * P.R. 3001. Presented 11th May, 1955. * First Report (P.R. 3001); paragraph 7, page 13. * First Report (P.R. 3001); paragraph 8, page 13. * First Report (P.R. 3001); paragraph 9. * First Report (P.R. 3001); paragraph 12. |
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