Committee Reports > List of Committees > Seanad > 1958 > Select Committee on Statutory Instruments > Report No. 01 (1958) - Statutory Instruments [20]

APPENDIX XIV.

Butter (Control in Scheduled Area) Order, 1957 (S.I. No. 53 of 1957). Butter Boxes (Restriction on Sale) Regulations, 1957 (S. I. No. 55 of 1957).

(1)

Rúnaí,

Roinn Talmhaíochta.

I am directed by the Select Committee on Statutory Instruments to state that it has had under consideration the Butter (Control in Scheduled Area) Order, 1957 [S.I. No. 53 of 1957] which is purported to be made pursuant to the provisions of section 4 of the Dairy Produce (Price Stabilisation) (Amendment) Act, 1956 [No. 39 of 1956].

It appears to the Committee that while section 4 of the Dairy Produce (Price Stabilisation) (Amendment) Act, 1956 enables the Minister to make regulations restricting the sale of butter in a specified area it does not contain power enabling him to do so by order. The Committee would be glad therefore to be furnished with a memorandum on this point.

As the Committee wishes to consider this matter at its next meeting a reply by 6th January, 1958, will be appreciated.

Cléireach an Rogha-Choiste.

7 Nollaig, 1957.

(2)

Rúnaí,

Roinn Talmhaíochta.

I am directed by the Select Committee on Statutory Instruments to state that it has had under consideration the Butter Boxes (Restriction on Sale) Regulations, 1957 [S.I. No. 55 of 1957] which is purported to be made pursuant to the provisions of section 6 of the Dairy Produce (Price Stabilisation) (Amendment) Act, 1956 [No. 39 of 1956].

The Committee wishes to draw attention to Article 2 of the Regulations under reference which reads:—

“2. In this Order—

‘society’ means a society registered under the Industrial and Provident Societies Acts, 1893 to 1936;

‘butter (wholesale dealer)’ means a person who carries on the business of selling creamery butter by wholesale only, etc.”

The Committee would like to be furnished with a memorandum explaining why the phrase “In this Order” is used in the Article instead of “In these Regulations.”

As the Committee wishes to consider this matter at its next meeting a reply by 6th January, 1958, will be appreciated.

Cléireach an Rogha-Choiste.

7 Nollaig, 1957.

(3)

7 Eanáir, 1958.

Cléireach an Rogha-Choiste

um Ionstraimí Reachtúla.

With reference to your minutes of the 7th December regarding the (1) Butter (Control in Scheduled Area) Order, 1957 and (2) Butter Boxes (Restriction on Sale) Regulations, 1957, I am directed by the Minister for Agriculture to state that your Committee’s queries regarding the Instruments in question were referred to the Attorney General’s Department and the Parliamentary Draftsman has stated:

As regards (1) that the file relating to the draft of the Order does not show why the draft was framed as an order instead of as regulations and that he would infer that the draft was based on the revoked Butter (Control in Scheduled Area) Order, 1952 (S.I. No. 205 of 1952), but that the substitution of a reference to regulations wherever there was a reference to an order was inadvertently omitted;

As regards (2) that similarly the file relating to the draft of the Regulations does not show why “this Order” was used in Article 2 instead of “these Regulations” and that in this case he would infer that the draft was based on Article 2 of the revoked Creamery Butter and Butter Boxes Order, 1954 (S.I. No. 176 of 1954) but that the substitution of “these Regulations” for “this Order” was inadvertently omitted.

(4)

Rúnaí,

Roinn Talmhaíochta.

I am directed by the Select Committee on Statutory Instruments to refer to Mr. Buckley’s minute of 7th January, 1958 (3/5/273) regarding the Butter (Control in Scheduled Area) Order, 1957 [S.I. No. 53 of 1957] and the Butter Boxes (Restriction on Sale) Regulations, 1957 [No. 55 of 1957] which were made under sections 4 and 6 respectively of the Dairy Produce (Price Stabilisation) (Amendment) Act, 1956. The Committee has been considering these instruments further in the light of the minute under reference with a view to determining whether the special attention of Seanad Éireann should be drawn to them and it would appreciate the further assistance of your Department before coming to a decision in the matter.

It would appear to the Committee that there is a clear distinction in the Dairy Produce (Price Stabilisation) (Amendment) Act, 1956 between those matters which may be dealt with by regulations and those which are proper to be dealt with by order and it does not seem to the Committee that regulations and orders are interchangeable particularly in view of the distinction between those two types of statutory instruments which is implied in subsection 3 of section 15 of the Interpretation Act, 1937. The Committee is anxious therefore to learn if your Department has obtained advice as to the validity or otherwise of the instruments under review and has considered what remedial action, if any, is necessary in their regard.

The Committee wishes to reach a decision on this matter at its next meeting and I am accordingly to request the favour of a reply by 28th instant.

Cléireach an Rogha-Choiste.

1 Aibreán, 1958.

(5)

14 Bealtaine, 1958.

Cléireach an Rogha-Choiste

um Ionstraimí Reachtúla.

With reference to your minutes of the 1st April and 7th May regarding the validity of the (1) Butter (Control in Scheduled Area) Order, 1957 and (2) Butter Boxes (Restriction on Sale) Regulations, 1957, I am directed by the Minister for Agriculture to state that your Committee’s queries regarding these instruments were referred to the Attorney General who has indicated that while appreciating that the question may not be free from doubt, he considers that the instruments in question may be taken to be valid. The Attorney General’s view in the matter is based on the following considerations:—

(1) As to S.I. 55/1957, the instrument is made in compliance with the Statute save that in the definitive reference in Article 2 the word “order” appears instead of “regulations.” It is submitted that no reasonable doubt could arise as to the plain meaning of Article 2 in that the definitions were to apply to the instrument, merely described in error as an “order.”

(2) The means prescribed in section 4 of the Act of 1956 (39/56) if directory and not mandatory would not affect the validity of the instrument S.I. 53/1957. Whether these words are mandatory or directory depends on the considerations adverted to by O’Byrne, J., in the Supreme Court judgment in re Clarke (1950 I.R. 250). In considering the importance of the provision which has been disregarded here and its relation to the general object intended to be secured by the Act it is felt that on balance a great deal is to be said in favour of regarding this provision as directory only. The Statute itself authorised the Minister to prohibit the sale of butter and thus the object intended to be secured by the Act is clear. It is hard to see that the particular instrument by which the Minister does this assumes such importance as to wreck the project because it takes a form other than that mentioned in the Section. These factors weighed with the Supreme Court in holding that the provision in Mental Treatment Act, 1945, in Clarke’s case was directory and not mandatory.