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REPORTPART I.1. Since its appointment, the Select Committee has examined the one hundred and fifty three (153) statutory instruments which are listed in the Proceedings. In the course of correspondence with Departments the Committee learned that ten (10) of these instruments, which had been laid before Seanad Éireann as statutory presentations, were not subject to a legal requirement as regards presentation and so did not come within the terms of the Order of Reference of the Select Committee. Copies of the relevant correspondence are reproduced in Appendix I to this Report. 2. The Select Committee has decided that, of the instruments examined, the special attention of Seanad Éireann should be drawn to the twenty (20) instruments of which details are given in Part II of this Report. 3. In addition to drawing attention to specific instruments, the Select Committee desires to submit certain general observations on matters which came to its notice during the course of its deliberations. These observations are contained in Part III of this Report. 4. In accordance with its Order of Reference, the Select Committee, before reporting, afforded to each Government Department or other authority concerned an opportunity of furnishing such explanations as the instrument making authority thought fit. Copies of the memoranda furnished as such explanations will be found in Appendices I to XV to this Report, PART II.5. The Select Committee has not found it necessary to draw the special attention of Seanad Éireann to any instrument on grounds (ii) and (iii) of the Order of Reference. 6. On ground (i), viz. “that it imposes a charge on the public revenues or contains provisions requiring payments to be made to the Exchequer or any Government Department or to any local or public authority in consideration of any licence or consent, or of any services to be rendered, or prescribes the amount of any such charge or payments”, the special attention of Seanad Éireann is drawn to the following instrument:— Newspapers (Special Service for Conveyance by Post Office Mail Vans) Warrant, 1957 [S.I. No. 37 of 1957]. This warrant, which authorises the conveyance of bundles of newly published daily newspapers by Post Office mail vans on rural services and fixes the scale of charges therefor, was made under the authority of the Post Office Act, 1908. It will be noted from the minute submitted by the Department of Finance (see Appendix II) that the Attorney General is satisfied as to the legality of the instrument. As it might not be generally expected, however, that the fixing of a scale of charges for a service of the type indicated would come within the ambit of the Post Office Act, 1908, the Committee has decided that the special attention of Seanad Éireann should be drawn to the instrument. 7. On ground (iv), viz. “that it purports to have retrospective effect where the parent Statute confers no express authority so to provide”, the special attention of Seanad Éireann is drawn to the following instrument:— Garda Síochána Pensions Order, 1957 [S. I. No. 231 of 1957]. This Order, which was made under section 13 of the Police Forces Amalgamation Act, 1925, amends the Garda Síochána Pensions Order, 1925, as amended, so as to provide that a Garda pensioner who is in receipt of Army retired pay may be given the benefit of the provisions of the Pensions (Increase) Act, 1956. The Order was made on 8th November, 1957, but it purports to have effect from 1st August, 1956, the date from which the increases authorised by the Pensions (Increase) Act, 1956, were payable. As will be observed from the correspondence with the Department of Justice (see Appendix III), the necessity for making the Order arose from the fact that the case of the particular pensioner was not adverted to before the Act of 1956 was passed. As the Police Forces Amalgamation Act, 1925, confers no express authority for the making of such an Order, with retrospective effect, the special attention of Seanad Éireann is drawn to the instrument. 8. 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 five instruments:— Waterford North Wharf Bye-Laws, 1956 (Confirmation) Order, 1957 [S.I. No. 31 of 1957]. Order made: 15th February, 1957; Laid: 26th February, 1957. The Department’s explanation is given in Appendix IV. Agricultural Produce (Cereals) Act, 1938 (Section 10) (Exemption) Order, 1957 [S.I. No. 29 of 1957]. Order made: 22nd February, 1957; Laid: 8th March, 1957. The Department’s explanation is given in Appendix V. Labourers’ Order, 1957. Order made: 7th June, 1957; Laid: 28th June, 1957. The Department’s explanation is given in Appendix VI. Bord Iascaigh Mhara Staff Superannuation Scheme. Scheme approved: 13th December, 1957; Laid: 15th January, 1958. The Department’s explanation is given in Appendix VII. Emergency Powers (Córas Iompair Éireann) (Reduction of Railway Services) Order, 1944 (Revocation) Order, 1957 [S.I. No. 60 of 1957]. Order made: 16th March, 1957; Laid: 25th March, 1957. The correspondence regarding this Order is given in Appendix VIII. 9. 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 fourteen (14) instruments:— Emergency Powers (Córas Iompair Éireann) (Reduction of Railway Services) Order, 1944 (Revocation) Order, 1957 [S.I. No. 60 of 1957]. Game Preservation Act, 1930 (Period under Section 27) (Extension) Order, 1957 [S.I. No. 76 of 1957]. Solicitors’ Accounts Regulations, 1957 [S.I. No. 252 of 1957]. A previous Select Committee made certain recommendations* in regard to the precise citation of the statutory authority under which an instrument is made and, in particular, recommended the discontinuance of the use of the phrase “every and any power in this behalf enabling.” The Committee agrees with the view that the use of this phrase tends to make a citation valueless as a means of ascertaining the precise authority under which an instrument is made. It has, therefore, decided to draw the special attention of Seanad Éireann to the foregoing three instruments because, in each, the citation of authority includes a phrase of the type referred to, the necessity for which is not readily apparent. It will be seen from the correspondence with the authorities concerned (see Appendix VIII) that, in the present instances, the phrases were included through failure to advert to the earlier recommendations. Fishing Weir Operation (No. 2) Order, 1957 [S.I. No. 1 of 1957]. Rathdrum and Wicklow Public Assistance Districts (Alteration of Boundaries) Order, 1957 [S.I. No. 215 of 1957]. Each of these Orders is made under the authority of a statute which sets out certain preliminary requirements which must be complied with before the order is made. A previous Select Committee recommended † that in such cases the instrument should contain a concise statement of compliance with these preliminary requirements but this recommendation was not followed in drafting the above orders. As will be seen from the explanations of the Departments concerned (see Appendix IX) the omission in each case was due to inadvertence. Lighting of Vehicles (Amendment) Regulations, 1956 [S.I. No. 334 of 1956]. Large Public Service Vehicles (Amendment) Regulations, 1957 [S.I. No. 5 of 1957]. Urban District of Ceanannus Mór (Alteration of Boundary) Order, 1957 [S.I. No. 35 of 1957]. Urban District of Enniscorthy (Alteration of Boundary) Order, 1957 [S.I. No. 36 of 1957]. It does not appear to the Select Committee that the provisions of the Interpretation Act, 1937, apply automatically to statutory instruments made under the authority of statutes passed before the enactment of the Constitution of Ireland in 1937. The general practice is to insert the following clause in such instruments:— “The Interpretation Act, 1937 (No. 38 of 1937) applies to this Order (or these Regulations).” No such clause appears in any of these four instruments but the Department concerned (see Appendix X) has undertaken to remedy this omission in the drafting of such instruments in future. Game Birds Protection Order, 1957 [S.I. No. 72 of 1957]. The wording of one article (article 4) of this Order gives rise to some doubt as to the duration and scope of its provisions. As a result of correspondence with the Department concerned (see Appendix XI) it has been decided that in order to clarify these points an amended wording will be adopted in drafting future orders of this kind. Fertilisers, Feeding Stuffs and Mineral Mixtures Regulations, 1957 [S.I. No. 264 of 1957]. These regulations prescribe, inter alia, the amount of the fee which is payable for the analysis of any fertiliser, feeding stuff, compound feeding or mineral mixture. It is indicated in the regulations that, in accordance with the provisions of the parent statute, the sanction of the Minister for Finance was obtained for the fee specified but that Minister’s sanction is not indicated in the customary manner by his signature on the instrument. The Select Committee has been informed (see Appendix XII) that the omission was due to inadvertence and that specific attention will be given to this point in preparing future regulations of a similar kind. The Pigs and Bacon Acts, 1935 to 1956 (Pigs and Bacon Commission) Regulations (No. 2) Order, 1957 [S.I. No. 171 of 1957]. In this instrument, which was made by the Pigs and Bacon Commission, the section which enables the Commission to make such regulations is not referred to in the citation of authority and the schedule thereto is given below instead of above the seal of the Commission. Furthermore, the instrument is described as an order and one article of it is drafted as if it were an order although it was made under a statutory authority which permits the making of regulations only. The observations of the Commission are given in Appendix XIII and it will be noted that, on the suggestion of its legal adviser, the Commission proposes to revoke this instrument and to replace it by fresh regulations. 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]. The first of the above mentioned instruments is made in the form of an Order but the statutory authority gives power to make regulations only. In the second instrument, one of the articles has been drafted as if the instrument were an order and not regulations. It would appear from correspondence with the Department of Agriculture (see Appendix XIV (1) to (5)) that these errors arose because the drafts were based on revoked instruments without advertence to changes in the statutory authority. It will be noted that the Attorney General has been consulted in the matter and that, while appreciating that the question may not be free from doubt, he considers that the instruments may be taken to be valid. PART III.10. Orders and Regulations. By far the greater number of the statutory instruments examined by the Select Committee are either orders or regulations. It is not clear what substantial difference, if any, there is between orders and regulations and it seems to the Committee that confusion exists as to the distinction between these two types of statutory instrument. In Appendix I are reproduced copies of correspondence which passed in regard to a number of orders which were laid before Seanad Éireann as statutory presentations under provisions that require the presentation of regulations but not of orders. The special attention of Seanad Éireann has been drawn in paragraph 9 of this Report to an instrument which was drafted in the form of an order when the statutory authority prescribed the making of regulations. In the said paragraph 9 attention is also drawn to two regulations of which clauses were drafted as if the instruments were orders. In view of the confusion referred to it may be pertinent to seek the reasons why it is provided in statutes that some things may be done by order and some by regulations. There can be no doubt that the distinction has been deliberately made as many Acts confer power to make both types of instrument though, of course, for different purposes. An examination of the instruments which have been considered by it does not lead the Select Committee to believe that any uniform practice has been followed in distinguishing between these two categories of delegated legislation. The Committee notes, for example, that the Agricultural Produce (Cereals) Act, 1938 enables the exemption from its provisions relating to import licensing control to be made by order, e.g. Agricultural Produce (Cereals) Act, 1938 (Section 20 (2) ) Exemption Order, 1957 whereas the power to grant exemption from certain provisions of the Oil Pollution of the Sea Act, 1956 is exercisable by regulations, e.g. Oil Pollution of the Sea Act, 1956 (Exceptions and Exemptions) Regulations, 1957. Again the furnishing information under the Vital Statistics and Births, Deaths and Marriages Act, 1952 is controlled by regulations, e.g. Vital Statistics (Amendment) Regulations, 1957 while the collection of statistics under the Statistics Act, 1926 is dealt with by order, e.g. Statistics (Census of Distribution) Order, 1957. The Select Committee notes that under the provisions of the Interpretation Act, 1937 [S. 15 (3)] the power to make regulations, rules or bye-laws shall be construed as including a power “to revoke or amend any regulations, rules, or bye-laws made under such power and (where requisite) to make other regulations, rules or bye-laws in lieu of those so revoked.” There is no mention of orders in this provision and it would seem that, where required, an express power of amendment and revocation of orders must be included in the parent statute. It is the experience of the Committee that the parent statute generally confers such power. While the Select Committee appreciates that there is no difference in actual legal validity it feels that some classification should be adopted to distinguish between orders and regulations. The apparently indiscriminate use of those terms to describe the instrument by which the power of delegated legislation is exercised is confusing and conducive to the type of error to which the Committee has drawn attention. The Committee suggests that the use of the expression “regulation” might be confined to describing an instrument which makes law of general application or prescribes rules for uniform observance. Orders on the other hand, might deal with specific places, persons or classes or with cases which call for individual treatment. 11. Short Titles. In the opinion of the Select Committee short titles of statutory instruments should be as short and as compendious as possible. It feels that it is not normally necessary for the title to include the full name of the parent statute as such inclusion tends to give rise to such cumbersome appellations as “The Agricultural and Fishery Products (Regulation of Export) Act, 1947 (Export of Poultry and Rabbits) Order, 1950 (Temporary Amendment) Order, 1957.” The Committee also feels that unless an instrument refers to the constitution or internal affairs of a rule making body the name of such body need not be set out in the short title, e.g., “The Pigs and Bacon Acts, 1935 to 1956 (Pigs and Bacon Commission) Regulations (No. 2) Order, 1957.” Finally, the Committee would prefer to see, in each short title, a phrase descriptive of the subject matter of the instrument as in the “Wireless Telegraphy (Business Radio Licence) Regulations, 1957” rather than a reference to a section of an Act as in the “Agricultural Produce (Cereals) Act, 1938 (Section 19 (2) ) Order, 1957.” The Committee feels that the adoption of these recommendations would facilitate the use and enhance the utility of indexes. 12. Amendment and Consolidation of Statutory Instruments. When extensive amendment of a statutory instrument becomes necessary the Select Committee would like, where possible, to see the instrument repealed and replaced by one embodying the required amendments. The Committee has in mind a case such as that of the Poultry Hatcheries Regulations, 1957, which consists entirely of detailed amendments of the Poultry Hatcheries Regulations, 1953 and of which no one article can be understood without reference to the earlier regulations. In this particular case the Committee feels that the interests of clarity would have been better served if the 1953 regulations were replaced by comprehensive regulations incorporating the amendments and it is to be noted (see Appendix XV) that the Department concerned agrees with this view but is unable to proceed with the preparation of such regulations until the question of enacting amending legislation has been settled. In the case of instruments which have been subject to amendments over a period of years such as the Defence Forces (Pensions) Scheme, 1937, the Select Committee is of the opinion that there is a need for consolidation and it would be glad to see this work undertaken at a convenient opportunity. (Signed) GEORGE O’BRIEN, Chairman. 11th July, 1958. * First Report (Pr.3001): paragraph 9; Second Report (Pr. 3864): paragraph 9. † First Report (Pr. 3001): paragraph 8. |
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