Committee Reports > List of Committees > Seanad > 1966 > Select Committee on Statutory Instruments > Report No. 02 - Statutory Instruments

REPORT

PART I

1. Since its appointment the Select Committee has examined the two hundred and twenty four statutory instruments which are listed in the Proceedings. In the course of correspondence with one Government 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 Committee’s terms of reference. Copies of this correspondence are reproduced in Appendix I.

2. The Select Committee has decided that, of the instruments examined, the special attention of Seanad Éireann should be drawn to six instruments of which details are given in Part II.

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.

4. In accordance with its terms of reference the Select Committee, before reporting, afforded to each Government Department concerned an opportunity of furnishing such explanations as it thought fit. Copies of memoranda furnished will be found in Appendices II to X 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 (i), (ii), (iv) or (v) of the Resolution 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:—

Hire-Purchase and Credit Sale Order, 1965 [S.I. No. 155 of 1965].

Hiring Order, 1965 [S.I. No. 156 of 1965].

The Hire-Purchase and Credit Sale Order, 1965 contains provisions (Article 3 and Part II of Schedule 2) designed to prevent money for the minimum deposit prescribed for hire-purchase or credit sale being “borrowed or otherwise acquired or agreed or arranged to be borrowed or otherwise to be acquired” from the retailer, wholesaler or manufacturer of the goods. The Hiring Order, 1965 contains similar provisions (Article 3 and Part II of Schedule 2) in regard to the initial rental payable on obtaining goods under a hiring agreement. The question arises as to what cases the phrases “otherwise acquired” and “otherwise to be acquired” are intended to apply.

The Department of Industry and Commerce informed the Committee (see Appendix II ) that the expressions “otherwise acquired” or “otherwise to be acquired” were used to make the prohibition on obtaining funds for the initial payments “as wide as possible” because “other methods not involving the actual borrowing of money by the customer are conceivable.” The Department has not, however, specified what form the “other methods” might take and the Committee has difficulty in envisaging what methods, other than borrowing, might reasonably have been expected to be necessary for the regulation and control of agreements of the kind involved.

The Select Committee desires also to draw special attention to Article 7 (1) of the Hiring Order, 1965 which reads as follows:—

“7. (1) A person shall not dispose of any television receiving set in pursuance of an agreement to let that set on hire if he knows either—

(a) that payment of the amount of which actual payment is required to be made in respect of that agreement by paragraph 3 of Part I of Schedule 2 hereto, was facilitated by the insertion of coins in a slot meter or other device used for the purposes of operating, or otherwise in conjunction with, any other television receiving set which was disposed of at any time during the period of nine months immediately preceding the making of that agreement, by that or any other person to the person who is the hirer under that agreement or to any other person; or

(b) that such other television receiving set was so disposed of with the intention that such a payment in respect of that agreement would be so facilitated.”

The Department has explained (see Appendix II) that the purport of this provision is to prevent the circumvention of “the requirement to make a down-payment equivalent to twenty weeks rental by a method under which the payment was made over a period in advance by the insertion of coins in a slot meter or other device attached to another television set hired under a previous agreement.” It is desired that the prohibition should apply whether or not the other set, hired under the previous agreement, “was hired specifically for that purpose.”

While the Select Committee appreciates the difficulty of controlling ingenious methods of circumventing the Regulations there are aspects of Article 7 (1) which seem to it to constitute an unusual or unexpected use of the statutory power. The effect of the provision is to make a person letting a television set on hire guilty of an offence if he knows that his customer rented a set within the previous nine months in certain circumstances. He may not under paragraph (a) hire out a set if he knows that the statutory initial payment was facilitated by insertion of coins in a slot meter on a television set rented within the previous nine months. Surprisingly enough he is liable even if he was not a party to the earlier transaction but at least this provision seems in accord with the restrictive purpose of the instrument. Paragraph (b), however, goes much further. Here all that is required is knowledge that there was a hiring of a set within the previous nine months with the intention that the initial payment for a second set would be facilitated in the manner indicated. As drafted the paragraph is not restricted to cases where the necessary money was in fact so collected and it seems to the Committee to have, therefore, the unreasonable effect of creating an offence even when the practice which it desires to stop has in fact been frustrated.

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 six instruments:—

Hire-Purchase and Credit Sale Order, 1965 [S.I. No. 155 of 1965].

Hiring Order, 1965 [S.I. No. 156 of 1965].

These instruments have already been referred to in paragraph 6 in another connection. Both are subject to the provisions of section 6 (5) of the Hire-Purchase (Amendment) Act, 1960 which requires that such orders “shall be made only after consultation with the Minister for Finance.” Since a previous Select Committee on Statutory Instruments made a recommendation in the matter* it has been the practice to include a statement of compliance with preliminary statutory requirements in instruments where such is appropriate. There is, however, nothing in either instrument under reference to indicate that the necessary consultation with the Minister for Finance took place.

The Department’s explanation (see Appendix II) is that the omission of evidence of prior consultation was not adverted to in the circumstances of “great urgency” which attended the drafting and execution of the instruments.

Criminal Justice (Legal Aid) Regulations, 1965 [S.I. No. 12 of 1965].

The third schedule to these Regulations sets out the fees payable to solicitors and counsel in respect of hearings in the various courts when free legal aid is granted. The fees vary depending on whether two or two Counsel are assigned. No fee is shown for a solicitor in the appropriate column relating to cases other than murder where two counsel are assigned and one is left to draw the correct assumption that the fee is the same whether one or two counsel are assigned.

The Department of Justice informed the Committee (see Appendix III) that the point was raised with the Parliamentary Draftsman who advised that “the meaning was clear and that the schedule did not require to be re-drafted.” The Committee notes that the schedule specifies different fees for solicitors in murder cases depending on whether one or two counsel are assigned. This fact inclines the Committee to the view that the Schedule ought to put it beyond doubt that there is no such differentiation in cases other than murder and as this object could have been achieved by the insertion of a few additional figures the Committee has decided to draw the special attention of Seanad Éireann to the instrument.

Road Traffic General Bye-Laws, 1964 [S.I. No. 294 of 1964].

The Select Committee asked the Commissioner of the Garda Síochána who made these bye-laws to comment on the use of the phrase “right side of the roadway” in Article 32 in view of the use of the phrase “left hand side of the roadway” in Article 17. The Commissioner replied (see Appendix IV) that the descriptions “right side” and “left side” are used throughout the bye-laws and suggested that “their meanings are sufficiently clear and that the use of ‘left hand side’ on one occasion will not create any confusion.”

The Commissioner is not correct in implying that the phrase “left hand side of the roadway” is used on one occasion only; it is also used in Article 20. Furthermore the phrase “right hand side of that roadway” appears in Article 9. The Committee believes that to facilitate interpretation uniformity of phraseology in describing like concepts is necessary in statutory instruments. Apart from that aspect the phrase “right side of the road” is ambiguous in that it can mean either the “correct side” or the “right hand side.”

Relief from Customs Duties (Fairs, Exhibitions and Similar Events) Order, 1965 [S.I. No. 143 of 1965].

Relief from Customs Duties (Professional Equipment) Order, 1965 [S.I. No. 144 of 1965].

These Orders deal with the temporary inportation of goods in certain circumstances free of duty and tax. Each Order, by clause 3 (b) of the Third Schedule, obliges the importer when re-exporting the goods to satisfy an officer of customs and excise that the requirements of the Order “as far as applicable, have been in all respects fulfilled.” Clause 3 (c) in the same Schedule requires the importer to “give such additional information and make such declaration relating to the goods or products [or “equipment”] and the circumstances of their use in the the State as the officer may require.”

The Department of Finance considers (see Appendix V) that clause 3 (c) might be required in some cases where clause 3 (b) might not be sufficient e.g. to establish the identity of the goods. The Department has intimated that there is no intention of requesting information in excess of that necessary.

In the Committee’s view the provisions, as drafted, tend unnecessarily to obscure the obligation of an importer in the circumstances envisaged. If the officer of customs and excise concerned is satisfied that the requirements of the Order “have been in all respects fulfilled” that should end the matter and it seems wrong to imply that something more may be required. The Committee considers that no obscurity would arise if it had been provided in a single clause that the importer should give the officer such information as he required and otherwise satisfy him that the terms of the Order had in all respects been fulfilled.

PART III

8. Self-delegation.

The Select Committee has found that a few statutory instruments authorise the Minister concerned to settle by some form of executive action details which the parent statute appears to envisage being determined by the instrument itself. For example, the Vocational Education Act, 1930 (Grants under Section 109) Regulations, 1939 (Amendment) Regulations, 1965 empower the Minister for Education to make “a grant, of such amount as the Minister thinks fit, towards the cost of providing improved accommodation” and provide that such a grant “shall be paid in such manner as the Minister thinks fit.” These regulations depend on section 109 of the Vocational Education Act, 1930 which states that “the Minister may, in accordance with regulations made by the Minister with the consent of the Minister for Finance out of moneys provided by the Oireachtas make grants etc.”

Strictly speaking no extension of the law making process can be justified except by the clear authority of the parent statute but the Committee recognises the difficulty which Departments may sometimes encounter in exercising appropriate control in any other way. The Committee acknowledges that some flexibility may be essential in particular cases so as best to achieve the intention of Parliament and for this reason it has not drawn special attention to the instrument referred to above. In that case it was intimated by the Department of Education (see Appendix VI) that only one school was affected and that a certain elasticity was necessary for the protection of State funds particularly as the management committee of the particular school was not bound by the rules applicable to public authorities generally in the placing of contracts. The Select Committee, however, regards itself as obliged to subject all instances of self-delegation to the closest scrutiny if the parent statute does not explicitly authorise it.

It is important to appreciate what precise terms in a statute can justify self-delegation. In this connection attention is directed to Appendix VII in which are reproduced a letter which the Committee sent to the Department of Agriculture in regard to the Wheat Order, 1964 and the reply thereto. In that case the Committee was concerned with the restriction imposed on the sale of wheat purchased from growers “except under and in accordance with directions of the Minister” and the reasons why the terms of such “directions” could not be embodied in a statutory instrument. The Department has been advised by the Attorney General that the provision is justified because the Minister is empowered by the parent statute “to provide for control..........................of the sale..............of wheat” by order. It is the view of the Attorney General that because the words “provide for control” are used instead of simply “control” that “the providing for control must be by order but the details of control in accordance with the provisions of the order need not.”

In view of the Attorney General’s opinion the Select Committee must concede that any power “to provide for control” by statutory instrument justifies self-delegation to the extent that it authorises the Minister to assume in the instrument power to settle details of the control by directions or other executive action. However, it is suggested that the Attorney General’s advice may be worth bearing in mind in considering proposals for legislation in future. If details of the control to be exercised by the Minister are intended to be subject to appropriate parliamentary control it would not be proper to delegate legislative power in the terms indicated. On the other hand if it can be conceded that such details are best settled by executive action it might be better so to authorise the Minister in the parent statute and to dispense with the statutory instrument altogether. In the latter case it would be worth while insisting on the Minister making a statutory instrument only if it were desired, by retaining a power of annulment, to prevent him from exercising the particular control at all in some circumstances.

9. Explanatory Notes.

In 1956 the Department of Finance in response to representations by the Select Committee on Statutory Instruments of the day issued an instruction to all Government Departments that “there should be included at the foot of each statutory instrument which is published a brief explanatory note describing the general purport of the instrument.” The manner in which this instruction has been carried out in some cases has already been the subject of critical comment by a previous Committee and this Committee has observed instances where the explanatory note has not been as helpful as it might have been particularly in the case of instruments which purport to vary allowances, restrictions or other such provisions in earlier instruments.

As instances of unsatisfactory notes observed by the Committee attention is drawn to the following examples:—

Institutional Assistance Regulations, 1965 [S.I. No. 177 of 1965].

“These Regulations amend the Institutional Assistance Regulations, 1954 (S.I. No. 103 of 1954) by deleting Article 12 thereof and substituting a new Article 12.”

Dental and Aural Appliances Regulations, 1965 [S.I. No. 199 of 1965]

“These Regulations revoke articles 6 and 7 of the Dental and Aural Appliances Regulations, 1961 under which restrictions and conditions were imposed relating to the supply of aural appliances under section 14 of the Health Act, 1953.”

The Select Committee asked the Department of Health for comments on these notes and the relevant correspondence is reproduced in Appendices VIII and IX.

The publicity which the two Regulations in question were given in the Press might be regarded as offsetting any obscurity in the explanatory notes as far as persons affected are concerned but the Select Committee cannot accept the views expressed by the Department if these are to be taken as applying to explanatory notes in general. The Committee agrees with the Department that “the explanatory notes should basically be designed to indicate what the law is after the commencement of the instrument to which it refers” but considers that in many cases of amending instruments this purpose cannot be achieved intelligibly without indicating the extent to which the provisions of the earlier instrument are being altered. It notes that some other Departments at least take the same view. The note appended by the Department of Finance to the Oireachtas (Allowances to Members)(Amendment) Regulations, 1965, for example reads:—

“These regulations increase from twenty to fifty the maximum number of Official Paid envelopes issuable to a member of the Dáil during periods when the Dáil stands adjourned for a period of not less than two weeks.”

Again the explanatory note by the Department of Social Welfare to the Social Welfare (Old Age (Contributory) Pension) (Amendment) Regulations, 1965 reads as follows:—

“These Regulations amend the Social Welfare (Old Age (Contributory) Pension) Regulations, 1960 to 1963, which provide for payment of reduced rates of old age (contributory) pension where the contribution conditions are partially satisfied, for the purpose of increasing all these reduced (weekly) rates, viz., 47/-, 44/-, 41/- and 38/-, to 47/6 with effect from 6th August, 1965, and for the purpose of further increasing these rates to 57/-, 54/-, 51/- and 48/- respectively as from 7th January, 1966.”

As the Department of Health points out, if the amending regulations happened to be very long, the explanatory note might need to be extremely complex to explain all the amendments in detail. Such cases ought, however, to be rare if regard is paid to the recommendation in paragraph 12 of the Select Committee’s Report of 11th July, 1958* and even in such cases it ought to be possible to give in the explanatory note a summary of the practical as opposed to the technical effect of the instrument. No explanatory note can be criticised if it tries to explain the object of the instrument in terms which the layman can readily understand. It is not necessary to be as elaborate as the Press statements cited in the correspondence reproduced in Appendices VIII and IX. In the Committee’s view an explanatory note should read like a concise and informal reply to the query of a non-expert as to what the instrument is about.

10. Laying of Statutory Instruments.

When a statutory instrument is laid before Seanad Éireann the Department responsible indicates on an accompanying form whether or not the presentation is being made in pursuance of a statutory requirement. This practice enables statutory instruments to be listed on the Order Paper as statutory and non-statutory presentations so that Members can see immediately which instruments are probably subject to annulment by the House and which are not. It also indicates to this Committee which instruments it is obliged to examine.

In three of the past five Reports made by Select Committees on Statutory Instruments there is reference to an instrument being laid before Seanad Éireann as a statutory presentation when in fact it was not subject to a statutory requirement as regards presentation. As well as coming across another similar case (see Appendix 1) this Committee discovered that one instrument had been laid as a non-statutory presentation when it was in fact a statutory one (see Appendix X).

The Select Committee is drawing attention to this matter because it feels that there may be confusion in some Departments about the importance of the distinction between statutory and non-statutory presentations. The Department of Social Welfare, for example, in explaining why a non-statutory presentation was made as a statutory one, stated (see Appendix 1) that “it was considered to be of advantage to the members of the Senate in the discharge of their functions that they should be made aware of the provisions of the Order and this was the intention behind the presentation.” Of course the quite normal practice of presenting documents for information need not be frustrated by the absence of a statutory provision. What is required is that Departments should be careful to distinguish between documents presented for information and documents presented pursuant to statute.

(Signed) W. A. W. SHELDON,

11th May, 1966.

* First Report (T.152—Pr. 3001; paragraph 8).

* First Report (T.162—Pr. 4685).