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REPORTPART I.1. Since its appointment the Select Committee has examined the two hundred and thirty three (233) statutory instruments which are listed in the Proceedings. In the course of correspondence with one instrument-making authority 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 eleven 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 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 explanation as the instrument-making authority thought fit. Copies of the memoranda furnished as such explanations will be found in Appendices II to IX to this Report. Oral evidence taken in regard to certain instruments will be found in the Minutes of Evidence. PART II.5. The Select Committee has not found it necessary to draw the special attention of Seanad Éireann to any instrument on grounds (i), (ii) or (v) of its 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 two instruments:— Electricity Supply Board (Members) Superannuation Scheme, 1961. In its report of 3rd August, 1961 (T. 183—Pr. 6167) a previous Select Committee drew the special attention of Seanad Éireann to the Córas Iompair Éireann (Members) Superannuation Scheme, 1960, on the grounds that it contained a clause making the Minister for Finance the final arbiter, in effect, in any dispute regarding “the claim of any person to, or the amount of, any pension or gratuity payable” under that scheme. The scheme now under reference contains a similar clause. This Committee agrees with its predecessor that such a clause which appears to limit the rights of persons to have recourse to the Courts should be explicitly sanctioned in the parent statute as is done, for example, in section 18 (5) of the Gaeltacht Industries Act, 1957. Accordingly the Committee has decided to draw the special attention of Seanad Éireann to the instrument. The Department’s explanation is to be found in Appendix II. Unemployment Assistance (Qualification Certificate Regulations) (Amendment) Order, 1962 [S.I. No. 137 of 1962]. This Order prescribes amended forms of (a) application for a qualification certificate and (b) the qualification certificate used in connection with Unemployment Assistance applications. It also provides for the use in future of forms substantially to the like effect as those now prescribed. The Department of Social Welfare states (see Appendix III) that the present Order has been drafted to secure that “future amendments of the forms which might be dictated by changes in legislation could be made without re-prescribing the forms by means of further amending Orders”. The Select Committee appreciates the Department’s desire for a less rigid procedure in making changes in these forms but is of the opinion that, while the parent statute which provides for the prescribing of the forms by statutory instrument continues in force, it is exceeding the statutory authority to assume power to authorise changes in such forms by administrative action. 7. On ground (iv) viz., “that it purports to have retrospective effect where the parent statute provides no express authority so to provide”, the special attention of Seanad Éireann is drawn to the following two instruments:— Defence Force Regulations:— C.S. 7—A contingent of the Permanent Defence Force serving with an International United Nations Force. D.F.R. A. 7—Amendments. Amendment No. 27. The Regulations C.S. 7 were made on 30th March, 1961, with effect from 21st December, 1960, and amendment No. 27 to D.F.R. A. 7 was made on 23rd May, 1961, with effect from 19th May, 1961. It is conceded by the Department of Defence (see Appendix IV) that there is no specific statutory authority in the Defence Acts, 1954 and 1960, for the retrospective clauses. Regulations C.S. 7 replaced Regulations made on 27th July, 1960, which ceased to have effect from the date of expiry of the Defence (Amendment) Act, 1960, which was repealed when the Defence (Amendment) (No. 2) Act, 1960, became law on 21st December, 1960. It is stated by the Department that the speedy passage of the latter Act through both Houses of the Oireachtas did not permit of the making of the new Regulations until some months later. The Special Committee is not satisfied by the explanation of the delay particularly as the Department admits that “the new Regulations of 30th March, 1961, are, for all practical purposes, the same as the Regulations of 27th March, 1960, which they replaced.” In regard to Amendment No. 27 to D.F.R. A. 7 the Department explains the necessity for the four days retrospection by “the military need to assemble the Unit urgently in advance of the making of the Regulation”. The Special Committee is not, however, satisfied that the retrospective clause could not have been omitted because it has been informed by the Department that “the powers conferred by the Regulation were not in fact operated during these four days”. 8. On grounds (vi), viz., “that for any reason its form or purport calls for elucidation”, the special attention of Seanad Éireann is drawn to the following seven instruments:— Foyle Area (Restriction of Netting) Regulations, 1961. This instrument is one of those made by the Foyle Fisheries Commission which requires to be approved by both the Minister for Lands and the Minister for Commerce for Northern Ireland. It was in fact made by the Commission on 20th February, 1961, and approved by both Ministers on 28th February, 1961. In the case of an instrument which requires the signature of more than one authority the date on which it comes into operation may be open to doubt. To avoid any such confusion in the case of Foyle Fisheries Regulations the Department of Lands undertook in deference to a suggestion by a previous Select Committee to get the Commission to insert the actual date of commencement in each instrument.* However, this was not done in the case of the Regulations under reference. The Committee was informed by a representative of the Department of Lands (see Minutes of Evidence, Questions 1 to 3) that the ommission in this case was an oversight and that the intention is to indicate the date of commencement in future instruments. The Select Committee also questioned the Departmental representative (see Minutes of Evidence, Questions 4, 5 and 6) about the availability of a map on which these Regulations entirely depend. From the explanation it received the Committee is satisfied that the practical steps taken to make the map available to interested persons are adequate. Garda Síochána Pay and Allowances Order, 1961 [S.I. No. 41 of 1961]. This Order provides for new rates of pay for members of the Garda Síochána. The new rates are set out in a schedule to the Order. The signatures of the Minister for Justice, who made the Order, and the Minister for Finance, who sanctioned it, appear above the schedule. The Committee considers, therefore, that the schedule has not been properly attested. The Department of Justice states (see Appendix V) that a recommendation of a previous Select Committee in this regard was overlooked but that it would be followed in future. Control of Exports (No. 2) Order, 1961 [S.I. No. 54 of 1961]. The purpose of this Order was to control exports of fertilisers to all destinations for a period of twelve months. It is stated to have been made under subsection (2) of section 2 of the Control of Exports (Temporary Provisions) Act, 1956 which, however, empowers the Minister for Industry and Commerce to control by order exports to specified destinations only. It appears from the Department’s explanation (see Appendix VI) that due to inadvertence subsection (2) of section 2 of the parent statute was cited in the Order instead of subsection (1) of section 2 which empowers the Minister to control by order exports to all destinations. Solicitors’ Accounts (Amendment) Regulations, 1961 [S.I. No. 51 of 1961]. Article 5 of these Regulations defines an accountant for the purposes of the Solicitors’ Accounts Regulations generally as “(a) a person approved by the Council, who is a member of either the Institute of Chartered Accountants in Ireland or the Association of Certified and Corporate Accountants, (b) any other person approved by the Council.” The Select Committee sought the observations of the Council of the Incorporated Law Society on the need for taking such wide discretionary power in regard to the persons who may be approved of as Accountants. The Council in its reply (see Appendix VII) states that its object is to avoid imposing hardship on solicitors whose accounts are audited by persons who are not members of the professional bodies. It wishes to continue to accept such accounts provided it is satisfied that the auditor employed is competent and reliable. While it appreciates the need for the Council to have discretion in this matter the Select Committee consider that the reference to the professional bodies in the Article as it stands adds nothing to the sense and it would have preferred if the article had been drafted so as to make the Council’s intentions clearer. It will also be observed from the correspondence reproduced in Appendix VII that the Select Committee raised the question of the statutory authority under which the concurrence of the President of the High Court is given to the making of such regulations. In the Committee’s opinion it would be preferable if the stautory authority were stated in the instrument itself and it trusts that for the sake of clarity this practice will be adopted for the future. Returning Officers’ (Borough and County Constituencies) Charges Order, 1961 [S.I. No. 203 of 1961]. Returning Officers’ (Borough and County Constituencies) Charges (No. 2) Order, 1961 [S.I. No. 278 of 1961]. S.I. No. 203 of 1961 increases the disbursements for staff employed at general elections and amends the definition of “constituency” in an earlier order to bring it into line with current legislation. S.I. No. 278 of 1961 amends an earlier order to enable a Returning Officer to employ a special legal assessor and to pay him a fee. The statutory authority for the Orders is contained in Section 25 (5) of the Electoral Act, 1923 which states that the Minister for Finance “shall prescribe a scale of maximum charges … and may revise the scale … and may also make regulations as to the time when and the manner in which accounts are to be rendered to him.…” This provision suggests to the Committee that the above-mentioned instruments should have been enacted in the form of Regulations and not of Orders. It has been argued on behalf of the Department of Finance (see Appendix VIII) that, as the manner of doing so is not prescribed, it is open to the Minister to select “any means he wishes to effect the prescription or revision” of the scale. The Committee on the other hand considers that the reference to “regulations” in Section 25 (5) of the Electoral Act, 1923, implies that the Minister should prescribe scales in that form. However, even if it could accept the Department’s view the Committee would consider that the best means were not selected. Unlike Regulations, Orders cannot, by virtue of the provisions of the Interpretation Acts, be amended or revoked unless the parent statute so authorises specifically. It will be observed from the correspondence with the Department that the Committee asked why a clause applying the provisions of the Interpretation Act, 1937, was omitted from S.I. No. 203 of 1961 when it was included in S.I. No. 278 of 1961. The Committee is satisfied that no significance was intended by the omission in the later case but considers that to differentiate between two similar instruments in this respect may tend to be confusing. In the Committee’s opinion this type of clause should be included in all instruments made under pre-Constitution statutes. County Kerry (Jurors’ Lists and Register of Electors) Order, 1961 [S.I. No. 204 of 1961]. The effect of this Order is to transfer to assistance officers certain functions of rate collectors in County Kerry. To achieve this purpose it was necessary to revoke an order made in 1924 under which these functions were transferred from rate collectors to the Garda Síochána. There is no specific authority, however, in the parent statute for the amendment of such orders. The Committee appreciates the difficulty which the Department of Local Government encountered in this case (see Appendix IX) and recognises that it arose from the drafting of the parent statute but considers that stricter adherence to the delegated authority might have been secured by an alternative drafting of the order under reference. PART III.Defence Force Regulations.9. The Select Committee, like its predecessors, experienced considerable difficulty in discharging its functions in relation to Defence Force Regulations largely because these Regulations consist almost entirely of legislation by reference and do not indicate the specific statutory authority on which they depend. Little progress has been made in recent years in consolidating the Regulations because of staffing difficulties in the Department of Defence, and consequently, because of the nature of the code, considerable research is necessary to unravel the implications of most of the instruments which come before the Committee for examination. On initial examination of the question the Committee did not see any good reason why the appropriate section or sections of the enabling statute could not be cited in each Defence Force Regulation as is done in all other statutory instruments. Furthermore the Committee did not understand why reprints of Defence Force Regulations which were prepared from time to time for administrative purposes could not have been enacted as statutory instruments so that comprehensive regulations would be available for members of the Houses of the Oireachtas as well as for officials and Army personnel. For these reasons the Committee decided to reopen the whole question with the Department of Defence. The correspondence which ensued with the Department is reproduced in Appendix IV and the evidence given by a representative of the Department before the Committee will be found in the Minutes of Evidence (Questions 17 to 55). The outcome of the Select Committee’s approach to the Department of Defence has been that the Department has agreed, in future (1) to cite the section or sections of the enabling statute in each instrument, (2) to append at the foot of each instrument an explanatory note as to its general purport and (3) to issue Regulations, as opportunity offers, in loose leaf form in order that pages amended to any great extent may be deleted and new pages substituted thereby obviating the need for reprints and rendering Regulations more easily readable. The Committee believes that the steps proposed will enhance the value of the requirement to present these Regulations to Parliament and will facilitate the work of examining them in the light of the Committee’s order of reference. Sub-delegation.10. The Select Committee feels that it is obliged to pay particular attention to any apparent attempts by instrument-making authorities to empower themselves to effect provisions by administrative action which ought to be prescribed in the statutory instruments themselves. For this reason the Committee, in paragraph 6 of this report, has drawn the special attention of Seanad Éireann to the Unemployment Assistance (Qualification Certificate Regulations) (Amendment) Order, 1962, which purports to empower the Minister for Social Welfare to authorise administratively changes in forms prescribed by Regulations. In the latter case the matter may not be intrinsically of great importance but the Committee believes that a point of principle is involved. The Select Committee does recognise that in certain cases some such form of sub-delegation may be unavoidable. Having heard evidence by a representative of the Department of Health (see Minutes of Evidence, Questions 7 to 16) the Committee considers that the Food Hygiene (Amendment) Regulations, 1961, provide a case in point. In these Regulations the Minister for Health is empowered to authorise administratively a departure from the precise methods of heat treatment in the manufacture of ice-cream which were prescribed in previous instruments. The authorisation may be given in respect of “a particular machine or process” and may permit “such means” and be “subject to such conditions as may be approved by the Minister”. The Committee is satisfied that the flexibility of this provision is necessary to keep pace with the development of the complex modern machines used in the manufacture of ice-cream. Generally speaking, however, the Select Committee considers that, unless it can be justified by the parent statute, the sub-delegation of legislative power should be avoided because it may restrict the opportunity of parliamentary supervision. Certainly any extension of the law-making process can never be justified solely by considerations of administrative convenience and the Committee proposes to continue to subject any apparent instances to vigilant scrutiny. (Signed) GEORGE O’BRIEN, Chairman. 31st July, 1963. *Third Report (T. 183-Pr. 6167: paragraph 9). |
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