1. Since the issue of its Second Report* the Select Committee has examined the two hundred and forty (240) statutory instruments which are listed in the Proceedings. In course of correspondence with one Department the Committee learned that one of these instruments which had been laid before Seanad Éireann as a statutory presentation was not subject to a legal requirement as regards presentation and so did not come within the terms of the Order of Reference of the Committee. Copies of this 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 fifteen (15) instruments of which details are given in Part II of this Report.
3. In addition to drawing special 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 II to XII of this Report.
5. The Select Committee has not found it necessary to draw the special attention of Seanad Éireann to any instrument on grounds (i) or (ii) of the Order of Reference.
6. 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 four instruments:—
Telephone Regulations, 1959 [S.I. No. 118 of 1959].
These regulations, which consolidate, with amendments, earlier telephone regulations, were made by the Minister for Posts and Telegraphs under the authority contained in section 2 of the Telegraph Act, 1885. One of the amendments is contained in clause 13 of the instrument and reads as follows:—
“The Minister may provide under a contract a call at a fixed time at a rate of charge differing from the charge fixed by or under these Regulations, or a series of such calls.”
Section 2 of the Telegraph Act, 1885, empowers the Minister to make regulations “for fixing the sums to be from time to time paid … on account of the use of any telegraphs by any persons”. This statutory provision suggested to the Committee that the actual rates to be charged must be specified in the regulations and accordingly it questioned the Minister’s right to provide for fixed time calls under contract at unspecified rates.
According to the explanation (see Appendix II) furnished by the Department of Posts and Telegraphs, the Minister’s power to provide fixed time calls under contract is derived not from the Telegraph Act, 1885 but from his ordinary powers at common law. The Department states that it was considered desirable to include the provision in the regulations so that if the charges are questioned “the legal authority for them can be quoted in a comprehensive document without having to draw a distinction between the Minister’s common law rights and his statutory rights in correspondence which is sometimes puzzling to citizens”.
The Committee does not consider administrative convenience any justification for including in a statutory instrument a provision which is admittedly not authorised by the parent statute.
Docks (Safety, Health and Welfare) Regulations, 1960 [S.I. No.279 of 1960].
Article 2(2) of the above-mentioned regulations provides that “the Minister may prescribe anything in these Regulations referred to as prescribed or to be prescribed”. Article 2(1) defines “prescribed” as meaning “prescribed by the Minister”.
It seemed to the Committee that power was being taken in the regulations to prescribe certain matters other than by statutory instrument. The Committee questioned whether such a course could be justified in view of the fact that “prescribed” is defined in the parent statute viz. Factories Act, 1955, as meaning “prescribed by regulation made by the Minister under this Act”.
The Department of Industry and Commerce states (see Appendix III) that, with the exception of prescribing an alternative process to annealing of chains, which the Minister does not propose to prescribe at this stage, the only matters required to be prescribed under the regulations are the forms of certificates and registers. The Department admits that it was the intention to prescribe these forms administratively but states that, having consulted the Attorney General, the Minister is satisfied that the forms should be prescribed by statutory instrument. Presumably if it is decided later to prescribe an alternative process to annealing this also will be done by statutory instrument.
The Committee considers that Article 2(2) of the regulations contains a sub-delegation not contemplated by the parent statute and accordingly wishes to draw the special attention of Seanad Éireann to the instrument.
Córas Iompair Éireann (Members) Superannuation Scheme, 1960.
This instrument which deals with the superannuation of members of the Board of Córas Iompair Éireann contains the following provision:—
“If any dispute arises as to the claim of any person to, or the amount of, any pension or gratuity payable in pursuance of this Scheme, the dispute shall be submitted to the Minister who shall refer it to the Minister for Finance whose decision thereon shall be final.”
This provision seems to debar an aggrieved person from having recourse to the Courts and the question was raised with the Department of Transport and Power whether a provision of this kind should originate in subordinate legislation where no specific delegating authority appears in the parent statute.
In its reply (see Appendix IV) the Department states that “the Minister is advised that the provision in question does not appear to be one which is not within the powers conferred on him under Section 2 of the Transport Act, 1959”.
It is not the function of the Committee to contest the legality of the instrument and the point raised by it with the Department was not a legal one. The Committee’s concern is whether the power of a Minister to exercise a quasi-judicial function should have the specific statutory authority of the legislature. In this connection the Committee notes that while the Minister for Finance has a similar power finally to determine disputes regarding the superannuation of the staff of Gaeltarra Éireann the necessary authority in that case is contained in an Act of the Oireachtas. In the view of the Committee it was proper that the sanction of the legislature should have been obtained for the provision in the latter case. Accordingly it has decided that the special attention of Seanad Éireann should be drawn to the Córas Iompair Éireann (Members) Superannuation Scheme, 1960, because it contains a provision which ought to have been included in the parent statute.
Greyhound Race Track (Racing) Regulations, 1960 [S.I. No. 64 of 1960].
These regulations which were made by Bord na gCon under the Greyhound Industry Act, 1958, deal with rules for the conduct of greyhound racing. Article 34(2) of the instrument reads as follows:—
“Everything provided for in these regulations shall be subject to the consent of the Board and to any directions issued by the Board in the exercise of its powers under the Act.”
Correspondence which the Committee had with Bord na gCon regarding this provision is reproduced in Appendix V.
Bord na gCon states that no conflict is anticipated between the directions referred to in Article 34(2) and the regulations themselves. As examples of its power to issue directions the Board refers to the provisions of Section 23(2) and Section 49(1) of the parent statute. The Board explains that the reference to the provisions of the instrument being “subject to the consent of the Board” is designed to give it control over a Control Committee established under the regulations.
Section 23(2) of the parent Act empowers Bord na gCon “by notice served on the licensee under a greyhound race track licence” to revoke or vary any condition attached to the licence or to attach any new condition to the licence. Section 49(1) enables the Board “by regulations or notice” to “fix the stake money and prizes to be offered for events at greyhound race tracks.” Apart from the fact that these provisions do not authorise the issue of “direction”, the Committee considers that the Board is making an unusual use of its powers in implying that it can supersede the provisions of its own regulations by exercising some other powers conferred on it by the parent statute.
Furthermore, the Committee does not think it justifiable to make all the provisions of the regulations “subject to the consent of the Board” merely to enable the Board to maintain control over the Control Committee. The powers of that Committee are contained in the regulations and any limitations of those powers considered necessary ought to have been stated in the instrument. This has not been done. On the contrary Article 31(6) which states that “the decisions of the Committee shall be final” implies that the Committee will act independently of the Board.
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:—
Scéim Aoisliúntas Fhoireann Ghaeltarra Éireann.
This superannuation scheme was prepared by Gaeltarra Éireann on 24th June, 1959, approved of by the Minister for Lands on 1st July, 1959 and agreed to by the Minister for Finance on 24th July, 1959. It is provided in the scheme that it came into effect on 1st April, 1959. There is, however, no authority in the parent statute, viz. Gaeltacht Industries Act, 1957, for giving the scheme retrospective effect.
It appears from the explanation furnished to the Committee (see Appendix VI) that the Board of Gaeltarra Éireann, which was established on 1st April, 1958, was anxious to ensure that the staff employed by it in 1958/59 should be given the maximum benefit of their service. While the Committee appreciates the anxiety of the Board in this regard it has not been convinced that the scheme could not have been prepared and approved of before 1st April, 1959.
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:—
Bovine Tuberculosis (Clearance Area) (Special Controls) Order, 1960 [S.I. 178 of 1960].
Bovine Tuberculosis (Movement Control) Order, 1960 [S.I. No. 179 of 1960].
Bovine Tuberculosis (Control of Public Sales of Cattle) Order, 1960 [S.I. No. 180 of 1960].
Bovine Tuberculosis (Clearance Area) (Limerick) Order, 1960. [S.I. No. 181 of 1960].
Orders made: 18th August, 1960; Laid: 30th August, 1960.
The Department’s explanation is contained in Appendix VII.
Land Bond Order, 1961 [S.I. No. 10 of 1961].
Order made: 5th January, 1961; Laid: 20th January, 1961.
The Department’s explanation is contained in Appendix VIII.
There is a statutory requirement in section 3(1) of the Statutory Instruments Act, 1947, that copies of instruments to which the Act primarily applies must be sent to certain specified bodies (not including the Houses of the Oireachtas) within seven days after making. The Select Committee expects Government Departments to lay, with the same promptness at least, instruments which they are required by statute to present to Seanad Éireann.
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 five instruments:—
Foyle Area (Production of Licence) Regulations, 1959.
Regulations relating to Foyle Fisheries, of which the above-mentioned is one, are made by the Foyle Fisheries Commission but require to be approved by both the Minister of Commerce for Northern Ireland and the Minister for Lands. As all three authorities signed the regulations under reference on different dates the Select Committee sought the views of the Department of Lands as to when the provisions became effective.
A previous Select Committee, when faced with a difference of legal opinion as to the date of commencement of instruments which require to be signed by more than one authority, recommended that such instruments should bear a common date of signature.* This practice is now followed where possible but, clearly, it is not possible where a Northern Ireland authority is concerned.
According to the Department of Lands (see Appendix IX) the above-mentioned regulations became effective on the date on which the Northern Ireland Ministry approved of them; the Ministry’s approval was the latest in point of time. The Department goes on to say that the date of commencement will in future be stated in any regulations made by the Foyle Fisheries Commission.
As it is not clear from the instrument itself on what date it became effective the Committee wishes to draw the special attention of Seanad Éireann to it.
Inland Post Amendment (No. 10) Warrant, 1960 [S.I. No. 48 of 1960].
In the second schedule to this instrument, which was made by the Minister for Finance, it is provided that the charge for a certificate of posting shall be increased from ½d. to 1d. It is stated in the schedule that this “service is subject to such rules as may be prescribed.”
The Select Committee asked the Department of Finance to state if the rules referred to are embodied in other statutory instruments and, if so, why the titles of those instruments are not mentioned specifically in the warrant.
In its reply the Department states (see Appendix X) that it has not been necessary to prescribe any rules in respect of this minor service. The present wording dates from the warrant made in 1939 which was based on a similar provision in a preceding warrant taken over from the British Administration. It is proposed to delete the wording in question from a consolidated instrument which is being prepared.
As the words in the second schedule, quoted above, would suggest that there are rules in existence which have not in fact been made the Committee has decided to draw the special attention of Seanad Éireann to the instrument.
Solicitors’ Remuneration General Order, 1960 [S.I. No. 165 of 1960].
The power to make orders regarding the remuneration of solicitors in respect of conveyancing and other non-contentious business is vested in the Chief Justice, President of the High Court, Senior Ordinary Judge of the Supreme Court and President of the Incorporated Law Society of Ireland.
The above-mentioned order is stated to have been made by “the body in that behalf authorised by the Solicitor’s Remuneration Act, 1881 as adapted by the Solicitors’ Remuneration Act, 1881 (Adaptation) Order 1946 (S.R. & O. 1946 No. 208) made pursuant to the Adaptation of Enactments Act, 1922 … in pursuance and execution of the powers given … by the said statute as so adapted and of all other powers enabling us in that behalf”. The Committee considers that in all statutory instruments the precise section or sections of the parent statute should be mentioned and that phrases such as “all other powers enabling us in that behalf” should not be used as tending to make the citation valueless.
Under section 3 of the Solicitors’ Remuneration Act, 1881, as adapted, the Chief Justice is required to “cause a copy of the regulations and provisions proposed” to be sent to the Council of the Incorporated Law Society “one month at least” before an order is made. There is nothing in the order under reference to indicate that this statutory requirement, on which the validity of the instrument may depend, was complied with.
For the foregoing reasons the Committee wishes to draw the special attention of Seanad Éireann to the instrument. It notes (see Appendix XI) that its views on the drafting of the instrument will be conveyed to the signatories in due course.
Agricultural Wages (Minimum Rates) Order,1959 [S.I. No. 18 of 1959].
Agricultural Wages (Minimum Rates) Order, 1956 (Revocation) Order, 1959 [S.I. No. 19 of 1959].
These orders made by the Agricultural Wages Board are stated to have been made by the Board “in exercise of the powers conferred on them by section 17 of the Agricultural Wages Act, 1936 (No. 53 of 1936), and of every and any other power them in this behalf enabling”. The Committee does not consider that any statutory powers are invoked in these orders other than those conferred on the Board by section 17 of the Agricultural Wages Act, 1936, and that consequently the use of the phrase, “and of every and any other power them in this behalf enabling”, is misleading.
The Committee is informed by the Agricultural Wages Board (see Appendix XII) that the wording of the above-mentioned orders merely followed a draft used since 1951.
10. Since its appointment in July, 1957, the Select Committee has examined 501 statutory instruments and has drawn the special attention of the Order of Reference. The headings under which special attention was drawn to the instruments are shown below:—
The number of instruments to which the Committee has drawn special attention is approximately the same as the number which its predecessor brought to the notice of the Seanad but the proportion of such instruments to the total examined shows a reduction from 16 to 8 per cent. In general the Committee has noticed a praiseworthy effort by instrument making authorities to conform with the standards formulated by Statutory Instruments Committees over the years and it believes that in future the emphasis of the work of the Committee will be on ensuring that these standards are maintained.
11. The Select Committee considers that the delegation by the Oireachtas of power to legislate by statutory instrument ought not to be regarded as authorising a Minister to empower himself to prescribe administratively relevant matter which he may consider ill-suited to the rigidity of legislative expression. The Committee is not satisfied that a power to make consequent or incidental provisions by instrument can cover such sub-delegation nor does it think that such sub-delegation can be justified on the grounds of convenience or flexibility alone.
The Docks (Safety, Health and Welfare) Regulations, 1960, to which the Committee has drawn special attention in paragraph 6, provide an example of a sub-delegation which the Committee considers is not contemplated by the parent statute. The Committee appreciates that the Department responsible for that instrument was motivated merely by a desire for greater flexibility and that the provisions to which exception has been taken are not intrinsically important. Nevertheless the Committee regards any sub-delegation of this kind as objectionable particularly if the effect is to circumvent a provision in the parent statute which requires the instrument to be laid before the Houses of the Oireachtas and renders it liable to annulment on motion. In regard to an instrument which purports to authorise an extension of the law-making procedure, the Committee considers that the extension should be justified by the express authority of the parent statute.
Reservations in Delegated Legislation.
12. The Select Committee views on sub-delegation apply also to any provision in a statutory instrument which purports to dispense with the requirements of the instrument in certain circumstances or to subject those requirements to some other reservation. In paragraph 6 the Committee has drawn special attention to a provision in the Greyhound Race Track (Racing) Regulations, 1960 which purports to make the provisions of the instrument subject to the consent of the Board which made it and to any directions which the Board may issue under the parent statute. In the Committee’s opinion a reservation of this kind should be supported by the specific authority of the parent statute and it considers that where a dispensing power is likely to be required in statutory instruments, provision should be made to that effect in the proposals for legislation submitted to the Oireachtas.
13. The Solicitors’ Remuneration General Order, 1960, to which the Select Committee has drawn special attention in paragraph 9 amends an order made in 1884. The latter order has already been amended by orders which were made in 1920, 1947 and 1951, and which are still in force. At present, therefore, it is necessary to scrutinise a series of five instruments extending over a period of 76 years to ascertain the provisions currently in force regarding solicitors’ costs for non-contentious business. In the Committee’s opinion there is a clear need for consolidating this series and it trusts that this task will be undertaken at the earliest opportunity.
(Signed) GEORGE O’BRIEN,
3rd August, 1961.