Committee Reports > List of Committees > Seanad > 1959 > Select Committee on Statutory Instruments > Report No. 02 - Statutory Instruments [7]

REPORT

PART I.

1. Since the issue of its First Report* the Select Committee has examined the one hundred and eight (108) statutory instruments which are listed in the Proceedings. The Committee has decided that the special attention of Seanad Éireann should be drawn to seven (7) of these instruments for the reasons set out in Part II of this Report.

2. 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.

3. In accordance with its Order of Reference, the Select Committee, before reporting on any instrument, afforded, to each Government Department or other body concerned, an opportunity of furnishing such explanations as the instrument making authority thought fit. The explanations furnished are set out in Appendices I to VII.

PART II.

4. The Select Committee has not found it necessary to draw the special attention of Seanad Éireann to any instrument on grounds (i), (ii), and (v) of the Order of Reference.

5. 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,” the special attention of Seanad Éireann is drawn to the following two (2) instruments:—

(a) Infectious Diseases (Amendment) Regulations, 1958 [S.I. No. 148 of 1958].

The purpose of these regulations, which were made under section 31 (4) of the Health Act, 1947, is to enable health authorities to impose charges for poliomyelitis vaccination when administered to persons other than those who, by virtue of section 14 (2) of the Health Act, 1953, are deemed to constitute the lower income group. Under article 4 of the regulations applicants for vaccination service may be required “to give to the health authority such information as may be required by the health authority.” The Department of Health states, in regard to the statutory authority for this article (see Appendix 1), that the Minister was advised that the expression “Regulations under this section may provide for ....the making of charges ....,” in article 31 (4) of the parent statute, could be interpreted as authorising the inclusion of provisions such as those in the article.

It is clear from the correspondence with the Department, which is reproduced in Appendix I, that the sole purpose of the article under reference is to enable health authorities to establish whether applicants claiming free vaccination services are in the lower income group or not. Normally the eligibility of such applicants would be established by their being in possession of General Medical Services Cards. In cases, however, where such applicants have not applied for cards, health authorities would have to avail themselves of the power given to them in article 4 to obtain information in regard to means, number of dependants and the applicants’ circumstances generally. As the provision has been drafted, however, health authorities are given power to require any applicant, whether seeking free service or not, to furnish any information the authorities wish.

As the Committee is of opinion that the provision in question purports to give health authorities more power than they require effectively to administer the service dealt with by the regulations, it has decided that the special attention of Seanad Éireann should be drawn to the instrument.

(b) The Solicitors’ Accounts (Amendment) Regulations, 1958 [S.I. No. 193 of 1958].

Article 6 of the foregoing regulations reads as follows:—

“Before instituting an inspection on a written complaint, the Council may require the payment by the person lodging the complaint of a reasonable sum to be fixed by the Council to cover the costs and expenses of the inspection and of the solicitor against whom the complaint is made. The Council may deal with any sum so paid in such manner as they think fit.”

The Council of the Incorporated Law Society of Ireland claim (see Appendix II) to derive the authority for the foregoing provision from section 66 (1) (d) and (e) of the parent statute, i.e., Solicitors’ Act, 1954. They state that they are advised that the provisions with regard to payment and disposal of monies are ancillary and subsidiary to the objects of the section and that they are within the authority of the statute. The section in question deals with the making of regulations in regard to solicitors’ accounts and the relevant portion of it reads as follows:—

“66— (1) Regulations made with the concurrence of the Chief Justice shall make provision with respect to the following matters—

.............................................................

(d) enforcing compliance with the regulations;

(e) ascertaining whether the regulations have been complied with;

.............................................................”

While it may be considered reasonable and indeed necessary that the Council should require a complainant to furnish a sum to cover the costs of inspection the Committee considers it an unusual use of power for the Council to provide that they may “deal with any sum so paid as they think fit.” The Committee is of opinion that it would be preferable to state precisely in the regulations the procedure to be followed for dealing with any sum so received.

6. 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 three instruments:—

Garda Síochána Allowances Order, 1958 [S.I. No. 52 of 1958].

Garda Síochána Pay Order, 1958 [S.I. No. 51 of 1958].

Garda Síochána Pay (No. 2) Order, 1958 [S.I. No. 156 of 1958].

These orders, which deal with the pay and allowances of members of the Garda Síochána, all purport to have retrospective effect for which there is no specific authority in the parent statute viz., Police Forces Amalgamation Act, 1925. The Department of Justice states (see Appendix III) that it has been the rule rather than the exception for such orders to operate retrospectively. Many of the orders have the object of extending to members of the Garda Síochána increases in remuneration already granted to other public servants. In such cases the retrospective provisions are designed to ensure that the Garda Síochána are not treated less favourably than others in public employment. Furthermore, the enabling statute contains provisions which require that a draft of every Pay Order be submitted to the appropriate Garda Síochána Representative Bodies whose representations, if any, must be considered by the Minister for Justice before the Order is made.

The Committee appreciates the difficulty of avoiding retrospective provisions in orders of this kind, but it is, nevertheless, of opinion that it must draw the special attention of Seanad Éireann to the instruments as the parent statute contains no specific authority for the retrospective provisions. Moreover, it feels that the obligation of prior consultation with Garda Síochána Representative Bodies should not present an insuperable difficulty in avoiding retrospection. Furthermore, it does not appear to the Committee that all orders of this kind have the object of extending to the Garda Síochána increases already granted to other public servants, e.g., Garda Síochána Pay Order, 1958.

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 three instruments:—

(a) The Solicitors’ Accounts (Amendment) Regulations, 1958 [S.I. No. 193 of 1958].

The Committee sought, from the Council of the Incorporated Law Society of Ireland, elucidation of two points in regard to the drafting of this instrument, viz., (1) the use of the phrase “every and any other power thereunto them enabling” in the citation of authority and (2) the wording of clause 3, in which it is provided that the regulations shall be read together with earlier regulations and “shall in so far as they are inconsistent therewith alter and amend same.”

The Council have explained (see Appendix II) that, in using the phrases cited above, they had been following the precedent of the rules made by the Superior Courts Rules Committee which takes the view that such phrases have the sanction of long usage and are desirable in view of the increase in legislation both direct and indirect.

The Committee has already expressed agreement* with the view of an earlier Committee that the use of phrases such as that indicated at (1) above tends to make a citation of authority useless. As to (2) the necessity for the blanket phraseology in question is not clear to the Committee and its introduction seems to have the effect of obscuring the precise purport of the instrument.

(b) Greyhound Race Track (Levy Collection) Regulations, 1958 [S.I. No. 225 of 1958].

(c) Greyhound Race Track (Levy) (Percentage) Regulations, 1958 [S.I. No. 228 of 1958].

Two points in regard to the form of the foregoing instruments seemed to the Committee to call for elucidation. In the first place the seal of Bord na gCon is authenticated by the signatures of the Chairman and Chief Officer of the Board. Section 15 (2) of the Greyhound Industry Act, 1958, provides that “the seal of the Board shall be authenticated by the signature of the Chairman of the Board or some other member thereof authorised by the Board to act in that behalf and the signature of an officer of the Board authorised by the Board to act in that behalf.” While the Chairman is, therefore, specifically authorised to authenticate the seal the Chief Officer is not and there is nothing in the instrument itself to indicate that he has, in fact, been so authorised. In the second place, the schedule to the Greyhound Race Track (Levy Collection) Regulations, 1958, appears below the seal of Board. The Committee agrees with the view expressed by a previous Select Committee † that, since a schedule is to have the same force as the regulations proper, it ought to be attested in like manner and should therefore appear above and not below the seal.

Bord na gCon has explained (see Appendix IV) that, at the time of the making of the instruments, the Chief Officer had, in fact, been authorised by the Board to authenticate the seal and it has undertaken to have him described in future instruments as a person so authorised. The Board has also promised to bear in mind the views of the Committee in regard to the attesting of schedules when making statutory instruments in future.

PART III.

8. Blanket Clauses.

Following examination of the Social Welfare (Unemployment Benefit) (Additional Condition) Regulations, 1958 [S.I. No. 233 of 1958], the Select Committee asked the Department of Social Welfare to furnish a memorandum explaining the purport of the following clause in the instrument:—

“(2) References in these Regulations to the Principal Act or the Act of 1956 or regulations made under the Principal Act or the Principal Act, as amended by the Act of 1956, shall be construed as references to that Act or those regulations as amended or extended or modified by any subsequent enactment or regulations.”

It appears to the Committee, from the Department’s reply (see Appendix V), that none of the provisions in S.I. No. 233 of 1958 depended for qualification on the foregoing clause at the time of the making of the instrument. The purpose of the clause appears to be to ensure that, if any of the regulations or statutes mentioned in the definition clause of the instrument are amended, extended or modified, while the instrument is in force, it will not be necessary to amend the instrument solely for the purpose of bringing the references up to date.

The Committee appreciates that a blanket clause of the type cited has the effect of reducing the volume of delegated legislation and it sees no objection to its inclusion in an instrument such as S.I. No. 233 of 1958 which is valid for one year only. It would, however, be concerned if such clauses had the effect of obscuring the purport of regulations in which they appear. The provisions of an instrument may depend for qualification on those of other regulations. If the latter regulations were amended subsequent to the making of the instrument the operation of this kind of blanket clause would make it necessary to have regard to the amendments in construing the instrument. If the amendments were numerous, the Committee would be in favour of revoking the instrument and replacing it by up-to-date regulations. It feels that Government Departments should be guided in this regard by the desire to see that subordinate legislation should be made as comprehensible as possible.

9. Consolidation.

The Select Committee is specially interested to see that, as far as possible, statutory instruments are made available in a form in which they can be easily understood by the general public. While lucidity of language is important it is also desirable that each instrument should, if possible, be comprehensible in itself. The ideal is to have all the regulations dealing with a particular subject embodied in one instrument, but, clearly, it is not always possible to achieve this object. Where, however, instruments have been so extensively amended over a period that it is necessary to pursue a great many references to comprehend their meaning, the Committee considers that consolidation should be undertaken at the earliest opportunity. It seems to the Committee to be of particular importance that instruments which have been heavily amended and which affect wide sections of the public should be available in consolidated form.

Among the statutory instruments examined by the Committee was a number amending certain orders and regulations dealing with the health services. As the amending instruments consist entirely of legislation by reference, the Committee asked the Department of Health to furnish a memorandum on the possibility of having the series made available in a codified form in view of their interest to a wide section of the public. In the Department’s reply (see Appendix VI) attention is drawn to the fact that the amendments consist merely of adaptations of earlier instruments consequent on the enactment of new legislation. The Department goes on to say that “persons concerned with the operation of the services would have no difficulty in carrying the changes, which were made, into their copies of the original regulations.” The Committee has no doubt that the amendments would present no difficulty to officials specialising in this particular field but it cannot accept that as a criterion by which the clarity of the instruments should be judged. However, the Committee agrees with the Department that, as the health services are still in their formative years, during which changes must be inevitable, the time is not yet ripe for consolidation. It wishes, however, to express the hope that, when it appears that further amendments will not be necessary for some time steps will be taken to consolidate the orders and regulations in force.

In connection with this question of consolidation, the Committee wishes to refer also to the special position of Defence Force Regulations. For reasons peculiar to the code these regulations consist largely of legislation by reference and do not conform to the general form of statutory instruments. An earlier Select Committee was informed by the Department of Defence in March, 1956* that the work of consolidating these regulations was then in progress but the present Committee has now been told by the Department (see Appendix VII) that “because of a reorganisation of duties to effect staff economies, little advance has been made in consolidation.” The Committee is of opinion that the objections to which these regulations are open, on the grounds of obscurity, will not disappear until codified sets are made available. It hopes, therefore, that the Department will keep the position under review and will endeavour to bring the work to a conclusion as soon as circumstances permit.

10. Explanatory Notes to Statutory Instruments.

The explanatory note, which is now appended to nearly every statutory instrument, is of great assistance to all who have to construe delegated legislation. The value of the note depends entirely on the clarity with which the purport of the instrument is explained. The Committee readily appreciates the difficulty of drafting a statutory instrument, dealing with a technically complex subject, in terms that will be immediately intelligible to all, but it feels that it ought to be possible to word the explanatory note, which has no legal significance, so that the intention of the instrument can be easily understood by everybody concerned. The more persons affected by the provisions of an instrument the greater the necessity for clarity in the note. In this regard, the Committee is not satisfied that the notes appended to some of the health regulations mentioned in the preceding paragraph are as helpful as they might be. The explanatory note dealing with the General Institutional and Specialist Services (Amendment) Regulations, 1958 [S.I. No. 266 of 1958], for example, is in the following terms:—

“These regulations make amendments in the regulations governing Institutional and Specialist Services arising from the alterations in the classes eligible for these services made by the Health and Mental Treatment (Amendment) Act, 1958 and the Social Welfare (Amendment) Act, 1958.”

As the instrument itself consists entirely of amendments of details in earlier regulations and cannot be understood without reference to the latter it will be appreciated that the note is of little assistance to a reader towards a quick understanding of its provisions. The Committee, in drawing specific attention to this example, does so with the object of impressing on all instrument-making authorities the need for providing, with every instrument, a clear and adequate explanatory note.

(Signed) GEORGE O’BRIEN,

Chairman.

13th November, 1959.

* T. 162—Pr. 4685. Presented 16th July, 1958.

* First Report (T.162—Pr. 4685); paragraph 9.

† First Report (T.152—Pr. 3001); paragraph 10.

* Second Report (T.154—Pr. 3864); paragraph 10.