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REPORTPART I1. Subsequent to the issue of its report of 31st July, 1963 the Select Committee appointed by Resolution of 21st March, 1962 examined the one hundred and fourteen instruments which are listed in the Proceedings. 2. In accordance with the Resolution of 7th July, 1965 this Select Committee has examined the Minutes of Evidence taken before and the explanatory memoranda submitted to the previous Committee in the period stated in the Resolution. As a result of this examination it has decided that the special attention of Seanad Éireann should be drawn to the ten instruments of which details are given in Part II of this Report. PART II3. It has not been found necessary to draw the special attention of Seanad Éireann to any instrument on grounds (ii), (iv) or (v) of the terms of reference. 4. 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 two instruments:— Road Traffic (Public Service Vehicles) Regulations, 1963 [S.I. No. 191 of 1963]. Article 31 (4) of these Regulations provides that “where an application for a public service vehicle licence is refused, two-thirds of the fee paid by the owner of the vehicle shall be repaid to him by the licensing authority to whom it was paid”. Section 82 (2) (c) of the Road Traffic Act, 1961, under the authority of which the Regulations were made, enables the Minister for Local Government to make regulations providing for “the payment of specified fees in respect of licences, badges or plates granted under the regulations and the disposition of such fees”. As the parent statute apparently contemplated the charging of a fee only when a licence, badge or plate was actually granted a witness on behalf of the Department was questioned as to the authority for retaining one-third of the fee when the application was refused (see Minutes of Evidence, Questions 29 to 32). The view expressed on behalf of the Department was that the expression, “granted under the regulations,” could be read as describing the licences, badges and plates affected and as “not necessarily limiting the charging of the fee to the time when the licence was actually granted.” The Department considered that it was reasonable to retain portion of the fee to cover the cost of inspection of the vehicle. It is, however, the view of the Committee that the retention of portion of the fee can be justified only by explicit statutory authority. Road Traffic (Licensing of Drivers) Regulations, 1964 [S.I. No. 29 of 1964]. Article 10 (2) of these Regulations provides that a fee of 2/6 shall be payable by anyone seeking information about a driving licence of another person. It was explained by a witness on behalf of the Department of Local Government (see Minutes of Evidence, Questions 24 to 28) that the authority for this provision is section 42 (1) of the Road Traffic Act, 1961 which empowers the Minister to “make regulations for the purpose of giving effect to this Part of this Act”. The Select Committee notes that all the other fees specified in the instrument are authorised by express provisions in the parent statute. It observes, for example, that in section 42 (2) (f) there is specific authority for fees for duplicate driving licences and that section 42 (2) (i) deals explicitly with fees for provisional driving licences. As the fee provided for in Article 10 (2) is not specifically provided for in the parent statute it must, unlike the other fees, depend entirely for its validity on the general powers contained in section 42 (1). The Committee has, therefore, decided to draw the special attention of Seanad Éireann to it. 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 three instruments:— Public Sales of Greyhounds Regulations, 1963 [S.I. No. 34 of 1963]. These Regulations, which were made by Bord na gCon, provide, in the case of auctioneers’ permits (Article 3) and licences to hold sales (Article 10), that “an application shall be made in such form or manner as the Board may direct.” Section 38 (3) of the parent statute, Greyhound Industry Act, 1958, provides that such applications “shall be in the prescribed form.” Under section 5 (3) of the statute the Board is empowered to make regulations “in relation to any matter or thing referred to in this Act as prescribed or to be prescribed.” It seems clear, therefore, to the Committee that the forms of application should have been prescribed by regulation. A representative of the Board gave evidence (see Minutes of Evidence, Questions 1 and 2) to the effect that it was proposed to make revised regulations which would repeal the provisions relating to auctioneers’ permits and would duly prescribe an application form for licences to hold sales. The revised regulations have not yet come to hand but it is understood that it remains the intention of the Board to make them. Road Traffic (Licensing of Drivers) Regulations, 1964 [S.I. No. 29 of 1964]. Article 10 (2) of these Regulations obliges a licensing authority on request and on the payment of a fee, to “supply to any person such information as is requested in relation to any driving licence, provisional licence or licence under Part III of the Act of 1933 granted to any specified person by the authority”. The Committee has already commented in paragraph 4 of this Report on the fee prescribed and is here concerned only with the information which licensing authorities are obliged to supply. The statutory authority for the provision is section 42 of the Road Traffic Act, 1961, subsection 2 (h) of which enables regulations to be made providing for “the making available for the use of members of the Garda Síochána and other persons of information in the possession of licensing authorities with respect to persons disqualified for holding driving licences and persons whose driving licences have been endorsed under this Part of this Act or whose licences under Part III of the repealed Act have been endorsed under that Part.” This power is expressed to be without prejudice to the generality of subsection (1) of section 42 which enables the Minister to “make regulations for the purpose of giving effect to this Part of this Act.” It would appear in view of its terms that Article 10 (2) of the instrument under reference depends for its validity on the generality of subsection (1) of section 42 of the statute. A witness on behalf of the Department of Local Government stated in evidence (see Minutes of Evidence, Questions 24 and 28) that the purpose of the provision is to enable “insurance companies to acquire, for the purpose of their business, information concerning driving licences” and that these companies “are the only people who avail of the regulations in practice.” The witness intimated that the phrase, “supply to any person such information as is requested in relation to any driving licence,” is “a continuation of the power under the 1933 Act” and he conceded that it was “a phrase with wide power.” The Select Committee is not satisfied on the evidence that the wide phraseology used in Article 10 (2) in regard to the supply of information is necessary “for the purpose of giving effect” to Part III of the Road Traffic Act, 1961. Disabled Persons (Maintenance Allowances) Regulations, 1963 [S.I. No. 142 of 1963]. Article 5 (2) of these Regulations reads:— “(2) A maintenance allowance payable in accordance with this Article shall be at such rate as may be determined by the health authority, subject to any directions issued by the Minister”. Section 50 (5) of the Health Act, 1953 provides that “a health authority shall in accordance with regulations made by the Minister with the consent of the Minister for Finance provide for the payment of maintenance allowances............................”. This provision suggested to the previous Committee that the Minister’s functions ought to be exercised through the medium of “regulations” and accordingly it asked the Department of Health where the statutory authority for the issue of “directions” was to be found. The Department has replied (see Appendix V) that “the Minister is advised that, as the parent statute neither fixes the rates of these allowances nor provides that these rates be specified in regulations, it was open to him to make the provision included in Article 5 (2) of the Regulations as to these rates”. The provision in question relates to allowances payable to disabled persons receiving training for employment in varied circumstances and the Department considers, therefore, that “a flat rate of payment, fixed by the Regulations, would not be appropriate for such cases.” Under section 5 (5) of the Health Act, 1947 these Regulations are subject to annulment by either House of the Oireachtas if a resolution to that effect is passed within twenty one days after presentation. It seems to the Committee that neither House can readily determine whether or not to exercise this power if the key information about the rates of allowances is contained in directions which Members never see. For this reason the Committee considers that if it is desired that rates of allowance should be controlled by administrative action there ought to be specific statutory authority for such a course. If general directions have been issued about the rates of these allowances the Committee does not understand why the actual directions could not have been incorporated in a statutory instrument. If no general directions have been issued the Committee is doubtful if Article 5 (2) as drafted is appropriate. 6. 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 eight instruments:— Public Sales of Greyhounds Regulations, 1963 [S.I. No. 34 of 1963]. These Regulations, which were made by Bord na gCon, have already been referred to in paragraph 5 of this Report in connection with the prescribing of application forms. Article 4 (2) obliges the holder of an auctioneer’s permit to “comply with the lawful directions of the Board under the Regulations.” Article 11 (1) provides that the holder of a sales licence shall comply with “the directions of the Board”. The previous Committee considered it necessary to investigate what “directions” were covered by these provisions. An enquiry by an earlier Committee* had not revealed any power of issuing directions under the parent statute which could be regarded as relevant. The only powers of direction specifically taken in the Regulations themselves are contained in Articles 3 and 10 which require respectively applications for auctioneer’s permits and for licences to hold sales to “be made in such form or manner as the Board may direct” and in Article 4 (3) which obliges the holder of an auctioneer’s permit to “forward to the Board such records and documents as the Board may, from time to time, direct.” It was explained by a witness on behalf of the Board (see Minutes of Evidence, Question 7) that the “directions” envisaged under Articles 4 (2) and 11 (1) are not those referred to in the preceding paragraph but rather such as might become necessary to meet unforeseen contingencies, e.g. alteration at short notice of times of sales and trials. This Committee agrees that it is reasonable that the Board should have such power but considers that it ought to have been specifically provided for in the instrument in view of the specific provisions for other directions. Incidentally it is clear from the evidence (see Minutes of Evidence, Question 7) that no significance attaches to the apparent distinction between “lawful directions” and “directions.” Several provisions in the Regulations deal with the renewal of permits and licences and a higher fee is prescribed for the initial grant of a permit or licence than for a renewal. It is provided both for a permit [Article 5 (3)] and licence [Article 12 (3)] that “it shall be valid until 31st December next following the date of issue unless previously suspended or revoked”. The parent statute, Greyhound Industry Act, 1958 speaks [section 38 (2) (b)] of “the grant, retention or renewal of licences”. The question arises as to what constitutes a “renewal” of a permit or a licence. It was explained by a representative of the Board (see Minutes of Evidence, Question 3) that the practice is to renew sales’ licences at the beginning of the racing season in February. If the holder of a licence which expired on 31st December did not however apply for another until, say, a year had elapsed would he be entitled to get one for the lesser fee on the grounds that he was applying for a “renewal”? It was stated on behalf of the Board (see Minutes of Evidence, Question 6) that he would not as “the word ‘renewal’ means to renew something already in existence”. It seems to this Committee that it can be argued that as all licences cease to be valid on 31st December there is nothing to renew after that date. In the Committee’s view a re-drafing of Article 12 (3) is necessary to make it clear that licences which expire on 31st December may be renewed up to a stated date. As indicated in paragraph 6 of this Report the provisions for auctioneer’s permits including Article 5 (3) are being dropped from the new regulations which are being made by the Board. Road Traffic (Lighting of Vehicles) Regulations, 1963 [S.I. No. 189 of 1963]. Road Traffic (Construction, Equipment and Use of Vehicles) Regulations, 1963 [S.I. No. 190 of 1963]. Road Traffic (Public Service Vehicles) Regulations, 1963 [S.I. No. 191 of 1963]. In each of these instruments (of which S.I. No. 191 of 1963 has already been mentioned in paragraph 4 of the Report) the definitions which are to govern the interpretation of the regulations are expressed to apply “save where the context otherwise requires”. A representative of the Department of Local Government informed the previous Committee (see Minutes of Evidence, Questions 18 and 19) that the phrase cited was used in the Regulations because it is also used in the Act to qualify the definitions therein. While this Committee recognises that the Department in drafting the Regulations could hardly be expected to ignore the example of the Act it has decided to draw the special attention of Seanad Éireann to the instruments because it regards the qualification of definitions in this fashion as objectionable. It is the Committee’s view that where the context requires a meaning other than that covered by the definition clause a revised definition should be inserted at the appropriate point and there expressed to be of appropriate limited application. Oil Heaters Regulations, 1963 [S.I. No. 9 of 1963]. The signature of the Minister for Industry and Commerce appears above the schedule to this instrument. The Committee is therefore drawing special attention to it because it does not regard the schedule as properly attested. The Department of Industry and Commerce has stated (see Appendix II) that the Minister’s signature was placed above the schedule in this instance because the schedule was of a voluminous nature but that in future instruments schedules would appear above the signature as recommended by an earlier Committee.* Infectious Diseases (Maintenance) Regulations, 1963 [S.I. No. 200 of 1963]. These regulations provide for the payment of maintenance allowances to persons suffering from infectious diseases. As there is no definition of “infectious disease” in the instrument it is not clear from its text what actual diseases are covered by its terms. The Department of Health has stated (see Appendix VI) that infectious diseases are specified in Article II of the Infectious Diseases Regulations, 1948 as amended by Article 2 of the Infectious Diseases (Amendment) Regulations, 1948. The 1963 Regulations have since been revoked and the present law is contained in the Infectious Diseases (Maintenance) Regulations, 1965. In the explanatory memorandum which is appended to the latter instrument there is a list of the infectious diseases for which allowances are payable and the Department intends to follow this procedure in future. While the Department’s proposal will effect an improvement this Committee sees no good reason why the body of the instrument should not contain a reference to the statutory definition. Telegraph (Inland Written Telegram) Amendment (No. 8) Warrant, 1963 [S.I. No. 179 of 1963]. Broadcasting (Receiving Licences) (Amendment) Regulations, 1963 [S.I. No. 199 of 1963]. S.I. No. 179 of 1963 provides for increases in the amounts which may be prepaid for certain telegrams and S.I. No. 199 of 1963 for increases in the cost of television and wireless licences. The Committee is drawing special attention to the instruments because neither can be understood except by reference to the instrument it amends. There was no explanatory memorandum appended to either. The Department of Posts and Telegraphs has explained (see Appendices III and IV) that the omission of explanatory notes in these cases was due to an oversight. (Signed) W. A. W. SHELDON, Chairman. 17th February, 1966. * Third Report (T.183 — Pr. 6167; paragraph 6) * First Report (T. 152 — Pr. 3001; paragraph 10) |
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