Committee Reports > List of Committees > Seanad > 1967 > Select Committee on Statutory Instruments > Report No. 03 - Statutory Instruments [7]

REPORT

PART I

1. Since the issue of its Second Report* the Select Committee has examined the one hundred and eighty (180) instruments listed in the Proceedings. The Committee has decided that, of the instruments examined, the special attention of Seanad Éireann should be drawn to the seven (7) instruments of which details are given in Part II of this Report.

2. In accordance with its terms 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 explanations furnished will be found in Appendices I to V to this Report. Oral evidence taken in regard to certain instruments will be found in the Minutes of Evidence.

PART II

3. The Select Committee has not found it necessary to draw the special attention of Seanad Éireann to any instrument on grounds (i), (ii) or (iv) of the Resolution of Reference.

4. 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:—

Central Bank of Ireland: Amending Superannuation Scheme, 1966.

Following correspondence (see Appendix I) the Select Committee questioned two witnesses from the Department of Finance (see Minutes of Evidence, Questions 1 to 17) about this Scheme which was made by the Central Bank with the approval of the Minister for Finance.

One purpose of the Scheme is to enable the Central Bank to apply any pension increases authorised by the Pensions (Increase) Acts and any future amendment or extension of those Acts to any grant of a superannuation allowance or pension to a Governor, officer or servant of the Bank. The Scheme is intended to obviate the need for making future schemes to keep the Bank’s pensioners in line with Civil Service pensioners who may benefit under future legislation (see Minutes of Evidence, Question 1).

In so far as officers and servants of the Bank are concerned the statutory authority for the Scheme is section 30 (1) of the Pensions (Increase) Act, 1964 which provides that a provision “enabling a board or other body to make a scheme for the grant of pensions to its employees shall be construed as enabling the board or body to make from time to time, with the approval of the Minister and the appropriate Minister, schemes for the increase of pensions payable to persons who have retired from the service of the board or body”. The power to make the initial schemes for officers and servants of the Bank is contained in section 31 (4) of the Currency Act, 1927 and section 15 (4) of the Central Bank Act, 1942.

By virtue of section 5 (3) of the Central Bank Act, 1942 a Governor of the Central Bank is a member of the Board of the Bank and although the Department of Finance witness did not concede the point (see Minutes of Evidence, Questions 6 to 10) it seems difficult to accept that he can also be regarded as an employee of the Board so as to bring his case within section 30 (1) of the Pensions (Increase) Act, 1964. However, it has been maintained by the Department of Finance (see Appendix I and Minutes of Evidence, Questions 6 and 8) that the statutory authority for the pension increase for the Governor depends not on the Act of 1964 but on section 2 (1) of the Central Bank Act, 1961 which enables a scheme relating to a Governor to be “amended from time to time”.

In so far as the present Scheme provides for the automatic application to the Bank’s pensioners of any increases that may be granted by future legislation to Civil Service pensioners the Select Committee finds it objectionable. In the Committee’s view the Act of 1964 contemplates each increase granted being covered by a separate scheme which must be laid before each House of the Oireachtas and which may be annulled by resolution of either House. The present Scheme appears, therefore, to remove this opportunity of Parliamentary control which the Houses have statutorily reserved.

Furthermore it is objectionable that the Seanad may in future be asked to accept a Bill ostensibly providing for increases for Civil Service pensioners only, which in fact apply to Central Bank pensioners as well (see Minutes of Evidence, Question 11). It is no answer to this question to suggest (see Minutes of Evidence, Question 15) that as the Central Bank has power to apply the Superannuation Acts terms to its own schemes the pensions payable under the schemes become pensions under the Superannuation Acts. It seems to the Committee that such pensions continue to depend for validity entirely on the Currency and Central Bank Acts, 1927 to 1961.

The Department of Finance appeared to argue before the Committee (see Minutes of Evidence, Questions 12 to 14) that an increase in the pension rates is not an amendment of the scheme under which the pensions were granted and apparently the Department sanctioned such increases in the past in the case of the Central Bank without any formal scheme being made at all. If this view were correct there would have been no need for section 30 of the Pensions (Increase) Act, 1964. That section removes any doubt about the Bank’s authority to increase the pensions of its retired officers and servants but it enables the Bank to do so only by schemes made from time to time.

The validity of the increase granted in the Governor’s pension, however, depends apparently on the power in section 2 (1) of the Central Bank Act, 1961 to amend his scheme from time to time. The question arises as to whether this authority is sufficient to cover pension increases for the Governor. In this connection the Committee wishes to draw attention to the amending superannuation scheme increasing pensions which was made by An Bord Altranais on 7th July, 1965 and approved by the Minister for Finance on 2nd September, 1965. Although An Bord Altranais has wide powers of amendment (subject to confirmation by the Minister for Health) under section 40 of the Nurses Act, 1950 its amending scheme increasing pensions is expressed to be made partly under the authority of the Pensions (Increase) Act, 1964. Presumably that Board did not consider its power to amend schemes as including power to increase pension rates.

The Committee is therefore faced with three conflicting views as to the appropriate procedure for increasing pensions. In the past the Department of Finance apparently took the view that no formal scheme was necessary. The Central Bank now seems to think that a scheme is necessary but that a power to make schemes from time to time is sufficient statutory authority. An Bord Altranais on the other hand appears to favour the opinion that unless a scheme comes within section 30 of the Pensions (Increase) Act, 1964, there is no authority for increasing pensions. As all those superannuation schemes are subject to the approval of the Minister for Finance it seems to the Committee that it behoves his Department to resolve these conflicting opinions.

Finally the Select Committee wishes to comment on Article 2 of the scheme which provides that the Bank shall “do all things which it considers necessary to enable the provisions of the Superannuation Acts to be made fully applicable to a governor, officer or servant. . . .” In the Committee’s view this language is altogether too vague for use in a statutory instrument. If it was desired to adapt and apply any provisions of the Superannuation Acts to the Bank’s pension schemes the Committee would have expected that this would have been done specifically in the instrument. Furthermore the Article seems to constitute an unusual use of the Bank’s statutory power in so far as it is expressed to be an amendment of previous schemes relating to officers and servants. There is no specific provision in the Currency and Central Bank Acts authorising amendment of schemes relating to officers and servants. The Committee is not convinced by the argument of the Department of Finance that section 15 (1) of the Interpretation Act, 1937 provides the requisite authority and notes that there is no reference to that Act in the citation of authority in the instrument. The Committee has always understood that all statutory instruments are subject to section 15 (3) of the Interpretation Act, 1937, and that the absence of a reference to schemes in that subsection implies that authority to revoke or amend a scheme must appear in the parent statute itself.

Stem and Bulb Eelworm Order, 1966 [S.I. No. 2 of 1966].

The Select Committee raised in correspondence with the Department of Agriculture (see Appendix II) certain points regarding Articles 4 and 7 of this Order and subsequently questioned two witnesses deputed by the Department to attend before it [see Minutes of Evidence, Questions 18 to 52].

The Order was made under the powers conferred on the Minister for Agriculture by section 2 and 3 of the Destructive Insects and Pests (Consolidation) Act, 1958. Section 2 enables the Minister to make orders “for preventing the introduction into the State of any destructive insect or pest or any agent for the biological control of plant pests.” Section 3 empowers him to make orders “for preventing the spreading in the State” of such insects, pests or agents. It is explicitly provided in section 3 that the contravention of an order made under the section shall be an offence in respect of which the Minister may impose penalties by order. There is no corresponding provision for penalties in section 2.

Article 3 of the Order prohibits the importation of onion seed except under licence. Article 4 (1) provides that onion seed imported in contravention of Article 3 shall, unless its disposal otherwise is authorised by licence, “be destroyed forthwith either by and at the expense of the importer or, if the Minister so directs, by some other person specified by the Minister.” If the seed is to be destroyed by the importer and is not so destroyed “the importer shall be guilty of an offence against this Order” under Article 4 (2) thereof for which he can be fined under Article 9.

It seemed to the Committee that Article 4 derived its authority from Section 2 of the Act which inter alia enables the Minister by order to “direct or authorise the destruction of any such article, if landed.” If that were so the provision of penalties for the mere importing of onion seed (whether infected or not) would appear to be an unexpected use of power. The Department of Agriculture, however, insisted (see Minutes of Evidence, Questions 19 to 22) that Article 4 depends for its validity on section 3 rather than on section 2 of the statute. Even accepting this view, however, the Committee considers that the provision in Article 4 is objectionable as drafted. If an importer imports onion seed without a licence and fails to destroy it he has completed all the ingredients of the offence as far as he is concerned. Nevertheless his liability to be fined does not arise unless the Minister has refused to grant a licence for disposal otherwise of the onion seed or to issue a direction for its destruction by some other person. The Committee was told that “it is most unlikely” that the Minister would give such a licence (see Minutes of Evidence, Question 24) and that the importer would need “some good case” before the Minister would give the direction indicated (see Minutes of Evidence, Question 24). In the Committee’s view it is improper that a person’s liability to be charged in Court and fined should depend on a post factum administrative decision and on this ground it regards the provision in Article 4 as an unusual use of statutory power.

Article 7 of the Order empowers “any officer of customs and excise, member of the Garda Síochána or inspector . . . for the purposes of enforcing this Order, or of detecting any violation of the provisions thereof to enter any land or premises, any railway truck or waggon, any ship, boat or vessel or craft, any aircraft or any place where ships, boats or other vessel or craft or aircraft are loaded or unloaded, etc.” Section 3 (2) (a) (ii) of the parent statute enables the Minister by order to direct or authorise “the entering on any lands” and Section 3 (2) (c) (iii) authorises the Minister by order to empower “any inspector” “to enter on any land.” Here the Committee is concerned with whether the statutory authority justifies the entry on railway trucks, ships, boats, vessels or aircraft and enables persons other than an inspector to be authorised to effect any such entry.

While the Committee might be prepared to accept the view that the policy of section 2 of the parent statute requires that an officer of customs and excise should have appropriate powers to prevent unlicensed importation it has not been persuaded that members of the Garda Síochána should be given this authority which seems in any case unnecessary: the Department’s witness told the Committee that they “have not been used to enforce this and it is rather unlikely that they would be used” (see Minutes of Evidence, Question 44). It seems to the Committee that an entry on private property by an official without a warrant requires explicit statutory authority and that in this respect particular care in drafting statutory instruments is required to see that individual rights are not encroached upon more than the statute requires. The Committee is not convinced that Article 7 conforms to this standard.

5. 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 three instruments:—

Social Welfare (Widows’ and Orphans’ (Contributory) Pensions) (Transitional) (Amendment) Regulations, 1966 [S.I. No. 234 of 1966].

Social Welfare (Widows’ and Orphans’ (Contributory) Pensions) Regulations, 1966 [S.I. No. 235 of 1966].

Orders made: 21st October, 1966; Laid: 9th November, 1966.

Social Welfare (Overlapping Benefits) (Amendment) Regulations, 1966 [S.I. No. 247 of 1966].

Order made: 31st October, 1966; Laid: 14th November, 1966.

It will be observed from the explanation furnished by the Department of Social Welfare (see Appendix III) that the delay in laying the instruments before Seanad Éireann was due to pressure of work at a time of a shortage of staff.

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 two instruments:—

Life Annuity (Sale of Land to Land Commission) Regulations, 1967 [S.I. No. 27 of 1967].

These Regulations provide for a scheme for the purchase by the Land Commission, for a life annuity, of holdings of elderly, incapacitated and blind persons. Article 9 enables the Land Commission to “grant a right of residence in the dwellinghouse on the land to the vendor for life and thereafter to the vendor’s surviving spouse or approved dependant for the life of such spouse or dependant but such right of residence shall lapse with the death of such spouse or dependant.” It seemed to the Committee that this provision interpreted literally might entail the lapse of a vendor’s right of residence on the death during his lifetime of his spouse or dependent relative although such could hardly have been the intention having regard to the instrument as a whole. The Committee accordingly asked the Department of Lands to elucidate and the Department’s reply is reproduced in Appendix IV.

The Department confirms that it is not intended that a vendor’s right of residence will be defeasible on his spouse or approved dependant predeceasing him and suggests that the use of the words “and thereafter” and “surviving” in Article 9 is sufficient to exclude any other meaning. In the Committee’s view the introduction of the concluding phrase, “such right of residence shall lapse with the death of such spouse or dependant” by the conjunctive “but,” instead of “and” has the unfortunate effect of implying a qualification of what has gone before. It is, therefore, drawing special attention to the instrument because Article 9 lacks clarity.

Solicitor’s Accounts (Amendment) No. 2 Regulations, 1966 [S.I. No. 193 of 1966].

The Committee asked the Incorporated Law Society of Ireland who made this instrument why the usual citation of authority referring to the appropriate sections of the Solicitors’ Act, 1954, was omitted from this instrument. The Society’s reply is to be found set out in Appendix V.

It will be noted that the omission was due to an oversight and that the instrument is shortly to be revoked and incorporated in consolidated regulations.

(Signed) W. A. W. SHELDON,

Chairman.

7th June, 1967.

* T. 207—Pr. 9000 of llth May, l966.