Committee Reports > List of Committees > Seanad > 1969 > Select Committee on Statutory Instruments (Appointed 7 July 1965) > Report No. 04 - Statutory Instruments [26]

APPENDIX IV.

Foot and Mouth Disease Orders.

(i)

An Rúnaí,

An Roinn Talmhaíochta

agus Iascaigh.

The Select Committee on Statutory Instruments has been considering whether it should draw the special attention of Seanad Éireann to a number of statutory instruments made under section 3 of the Diseases of Animals Act, 1966 on the grounds that they appear “to make some unusual or unexpected use of the powers conferred” by the parent statute. The instruments in question are:—

Foot and Mouth Disease (Restriction of Exhibition and Sale of Bovine Animals) Order, 1967 (S.I. No. 263 of 1967).

Foot and Mouth Disease (Restriction of Exhibition and Sale of Sheep and Pigs) Order, 1967 (S.I. No. 295 of 1967).

Foot and Mouth Disease (Restriction on Entry of Persons into the State) Order, 1967 (S.I. No. 287 of 1967).

Foot and Mouth Disease (Restriction on the Movement of Persons) Order, 1967 (S.I. No. 266 of 1967).

Foot and Mouth Disease (Restriction on the Movement of Persons) Order, 1968 (S.I. No. 25 of 1968).

Foot and Mouth Disease (Merchant Shipping) Order, 1967 (S.I. No. 264 of 1967).

Foot and Mouth Disease (Restriction of Sports and Sales) Order, 1968 (S.I. No. 30 of 1968).

Foot and Mouth Disease (Restriction of Sports and Sales) (No. 2) Order, 1968 (S.I. No. 37 of 1968).

As all these instruments are expressed to be “for the prevention of the spreading of foot and mouth disease” the Committee assumes that they depend for their validity on section 3 (1) (a) of the Act. The Committee has no doubt that the orders were necessary in fact to prevent the spreading of foot and mouth disease. It notes, however, that the Minister’s power under section 3 of the Act is limited to making orders “subject and according to the provisions of this Act”. This limitation suggests to the Committee that measures necessary for the prevention of the spreading of disease may only be prescribed by orders under section 3 if contemplated in some fashion by the statute itself. It would welcome the assistance of your Department’s views on this point.

Cléireach an Roghchoiste.

21 Márta, 1968.

(ii)

An Rúnaí,

An Roinn Talmhaíochta

agus Iascaigh.

I am directed by the Select Committee on Statutory Instruments to state that it has been considering the following instruments which are expressed to be made under the authority of sections 3 and 30 of the Diseases of Animals Act, 1966:—

Foot and Mouth Disease (Restriction of Import of Vehicles, Machinery and other Equipment) Order, 1967 (S.I. No. 243 of 1967).

Foot and Mouth Disease (Restriction of Import of Vehicles, Machinery and other Equipment) (Amendment) Order, 1967 (S.I. No. 252 of 1967).

Foot and Mouth Disease (Restriction of Import of Vehicles, Machinery and other Equipment) (Amendment) (No. 2) Order, 1967 (S.I. No. 267 of 1967).

The Committee notes that the instruments are not expressed to be “for the prevention of the spreading of disease” and this fact suggests to the Committee that the orders depend for their validity in effect on section 30 of the Act.

The orders were made to prohibit the importation from Great Britain, except under licence, of agricultural or horticultural machinery, vehicles and other containers used to transport animals, pedal cycles, used mechanically propelled vehicles, machinery and equipment, used caravans, trailers and horse drawn vehicles and used tyres. Section 30 (1) (a) of the Act enables the Minister to prohibit the importation, except under licence, “of animals or poultry or of any specified kind of animal or poultry or of carcases, eggs, animal or poultry products (including products made from or containing animal or poultry products, carcases or eggs), fodder, litter, dung or other thing, either generally or from any specified country or part of any such country.” The Committee is in doubt as to whether any interpretation of the phrase “other thing” which would be sufficiently wide to comprehend machinery, vehicles and equipment can be justified. It would be glad, therefore, if you would furnish an explanatory memorandum on this point.

Cléireach an Roghchoiste.

21 Márta, 1968.

(iii)

An Rúnaí,

An Roinn Talmhaíochta

agus Iascaigh.

I am directed by the Select Committee on Statutory Instruments to state that it notes that the following instruments are expressed to be made partly under the authority of section 48 of the Diseases of Animals Act, 1966:—

Foot and Mouth Disease (Restriction of Sports and Sales) Order, 1967 (S.I. No. 253 of 1967).

Foot and Mouth Disease (Importation of Animals) (Amendment) Order, 1967 (S.I. No. 282 of 1967).

Diseases of Animals (Restriction of Movement of Cattle, Sheep and Swine) Order, 1967 (S.I. No. 283 of 1967).

The Committee also notes that section 48 is not mentioned in the citation of authority in other instruments made under the Act. For example S.I. No. 282 of 1967 amends the Foot and Mouth Disease (Importation of Animals) Order, 1967 (S.I. No. 235 of 1967) but whereas there is a reference to section 48 in the citation of authority in the former there is no such reference in the latter.

It is not clear to the Committee that section 48 confers on the Minister power to make orders but it does seem that in as much as the section provides inter alia that contraventions of orders shall constitute offences it applies to all orders made under the Act. The Committee would be glad to learn, therefore, why there is a specific reference to section 48 in the case of the above-mentioned instruments.

The Committee also observes that the Diseases of Animals (Restriction of Movement of Cattle, Sheep and Swine) Order, 1967 is expressed to be made under section 30 as well as under sections 3 and 48. As this order prohibits the movement of livestock, except under licence, from marts or for export it is not clear how section 30 which deals with imports can be relevant. The Committee would like to have your Department’s comments on this point also.

Cléireach an Roghchoiste.

21 Márta, 1968.

(iv)

Secretary,

Select Committee on Statutory Instruments,

Seanad Éireann.

I am directed by the Minister for Agriculture and Fisheries to refer to your minutes of 21st March drawing attention to various points raised by the Select Committee in relation to statutory instruments made under the Diseases of Animals Act, 1966, as precautions against the introduction of foot and mouth disease and to state that the Minister is advised as follows on the points adverted to by the Committee:—

1. As regard the instruments (viz. S.I. Nos. 263, 264, 266, 287 and 295 of 1967 and 25, 30 and 37 of 1968) to which the Select Committee has been considering whether it should draw the special attention of Seanad Éireann on the grounds that they appear “to make some unusual or unexpected use of the powers conferred” by the enabling statute, the Committee’s assumption that they depend for their validity on section 3 (1) (a) of the Diseases of Animals Act, 1966 is correct. The Legislature, in enacting section 3 (1) (a), inter alia has given the Minister for Agriculture and Fisheries power to make regulations for purposes in addition to those specified elsewhere in the Act. This particular power is limited in one respect only, namely, the provisions of any order so made must be for the prevention of the spreading of certain diseases. Accordingly the phrase “subject and according to the provisions of this Act” used in section 3 (1) should be construed as referring rather to provisions such as sections 4, 6, 18, 25 and 32. It seems that the provision was enacted to enable the Minister, subject to the limitation referred to, to make Orders to cope with circumstances not specifically contemplated by the statute. From the wording of section 3 (1) it can be said that the Legislature considered that wide powers were necessary to meet a possible epidemic and for this reason passed the section in its particular form. Accordingly, it is not agreed that the Minister, in making the Orders mentioned by the Committee in this context, made an unusual or unexpected use of the power conferred by section 3 (1).

2. The Foot and Mouth Disease Orders restricting the import of vehicles, machinery and other equipment (viz. S.I. Nos. 243, 252 and 267 of 1967) probably depend for their validity on sections 3 and 30 of the Diseases of Animals Act, 1966. A reference to the purpose for which an Order is being made is not necessary to enable the Minister to exercise a particular power vested in him under the said section 3. Last autumn a large number of Foot and Mouth Disease Orders had to be made within a short period and inevitably there are some inconsistencies in wording as between the various instruments.

The Committee’s doubt relating to the scope of section 30 (1) (a) of the said Act is shared to some extent. The matter is complicated by the power conferred on the Minister by section 11 (2). If section 30 does not enable the Orders to be made, section 3 contains the necessary enabling provision. On the date when the first of the Orders being considerad came into operation (20th November, 1967) the Foot and Mouth Disease (Importation of Animals) Order, 1967, was in force. By Article 5 of that Order, for the purposes of extending (inter alia) section 30 of the said Act, the First Schedule to that Act was amended whereby the meaning of “animal” was in effect extended to cover all four-footed beasts.

The Committee’s doubt appears to be based on an application of the ejusdem generis rule. “The ejusdem generis rule is to be applied with caution and not pushed too far, as is the case in many (court) decisions, which treat it as automatically applicable, and not as being, what it is, a mere presumption, in the absence of other indications of intention of the Legislature”. Craies on Statute Law 4th Edn. p. 167. The learned author further states that where words are clearly wide in their meaning they ought not to be qualified on the ground of their association with other words.

When the Orders mentioned were being prepared it was thought that, on balance, the import restriction could have been made under section 30 (1) (a) alone, having regard especially to the amendment referred to. It was appreciated that this could be revoked; the First Schedule could also be further amended and its original scope narrowed. Further, the wording of section 30 (2) suggests that the Legislature intended the provisions of section 30 (1) (a) to cover a very wide range of articles. However, an authoritative interpretation is the prerogative of the Courts and it is only possible to take a view. In any event the Minister has power to provide for the restriction under section 3 (1). In the circumstances it was considered prudent to refer to section 3.

3. As to the Orders mentioned by the Committee and expressed to be made partly under section 48 of the said Act (viz. S.I. Nos. 253, 282 and 283 of 1967), section 48 (1) (c) gives the Minister a power to declare by order offences. In each of the Orders mentioned offences are declared relating either to (a) compliance with the requirements of a notice, or (b) compliance with a condition attached to a licence. Neither of these matters appears to be covered by the general provisions of section 48.

With regard to the citation of section 30 in the Diseases of Animals (Restriction of Movement of Cattle, Sheep and Swine) Order, 1967 (S.I. No. 283 of 1967), this is a drafting error and the Department is obliged to the Committee for drawing attention to the matter. The Order has now been revoked but the matter has been noted in case it is necessary to make a similar Order in the future. The reference should have been to section 27. The Senate Committee may be concerned as to whether this error affects the validity of the Order. It does not. The Minister has power under the enabling Act to make the Order and though it is desirable to mention the enabling provision it is not necessary that the validity of a statutory instrument should be shown on its face. The introduction to such an instrument is informative and does not form part thereof. It is only in recent years that the enabling provisions have, on the recommendation of the Committee, been specifically mentioned in such introductions.

T. McCARTNEY.

8 May, 1968.

(See Minutes of Evidence).

(v)

Secretary,

Select Committee on Statutory Instruments,

Seanad Éireann.

I am directed by the Minister for Agriculture and Fisheries to refer to previous correspondence and to the attendance of an officer of this Department at a meeting of the Select Committee on the 12th June in connection with points raised by the Committee in regard to statutory instruments made under the Diseases of Animals Act, 1966, as precautions against the introduction of foot and mouth disease.

The matter was referred to the Attorney General for further consideration in the light of what transpired at the meeting of the Select Committee on the 12th June as indicated in the typescript copy of the Minutes of Evidence received from you. The following is the advice tendered by Mr. D. Quigley of the Attorney General’s Office to this Department:

“It seems to me that the points raised by the Select Committee with Mr. Brennan come under four main heads and that the best way of dealing with them is to set them out and comment on each separately.

No. 1. The scope of Section 3 (1) (a) of the Act, and in particular of the words “subject and according to the provisions of this Act—(a) generally, for the due execution of this Act, or for the prevention of the spreading of disease;”

(a) It is common to find words such as ‘generally for the due execution of this Act’ in sections giving power to make orders. When words are added, they must normally be construed as having a meaning which either restricts or expands the scope of the earlier words. In the present case I am strongly of the view that the words ‘or for the prevention of the spreading of disease’ adds to the powers bestowed for the due execution of the Act power to make orders for the prevention of the spreading of disease. These additional powers must be powers not expressly contained in the Act itself because, otherwise they would be included in the ‘due execution of the Act’. The words, commencing with the disjunctive, in my opinion must consequently be interpreted as giving power to make orders for the prevention of the spreading of disease which the Minister is not empowered to make under the Act otherwise. Comparison of the powers to make orders under Section 3 with the powers to grant licences under Section 5 shows the differences.

(b) The words ‘subject and according to the provisions of this Act’ must then be considered. When these words are considered in the light of the opinion expressed in paragraph (a) above it seems to me that ‘subject to’ must be given the general meaning that orders made under the extra powers must not contravene the statutory provisions and ‘according to’ means in accordance with the procedural requirements of the Act. In many instances these qualifications would overlap. As examples of both qualifications an order even if for the prevention of the spreading of disease could not be exempted from Section 4 and could be amended or revoked under Section 3 (2).

No. 2. The power, by Order, to restrict the entry of persons of a particular category on to particular lands or premises.

(a) There is no power relating to the prohibition of the entry of persons in sections 30 to 34 of the Act. There was no suggestion that there is. There is power in Section 15 (b) of prohibiting and regulating the movement of persons into, within or out of an infected area so declared under Section 14. Consideration was given to the declaration of Britain as an infected area but since Section 15 (b) referred to ‘within’ I formed the opinion that these provisions were more appropriate to areas within the State. However, I was not and am not of the opinion that these sections could not be used in respect of Britain (except, of course, ‘within’) but considered the powers under Section 3 as described in No. 1 above as being more appropriate in the circumstances.

(b) The Minister made the Attorney General aware of the advice of his experts on the risk of spreading Foot and Mouth disease to this country by allowing persons who had been in Britain access to lands, animals and premises here, without restriction. The Minister, on foot of this advice, had come to the conclusion that he should prohibit such access to such persons to prevent the spreading of disease to this State. I formed the opinion that as a matter of law the Minister was amply justified in reaching such a conclusion and further, as explained in No. 1 above, has power to prohibit such access by such persons. Further, I formed the view that the evidence was such that taking the Act as a whole, a Court might well construe the power in Section 3 to prevent the spreading of disease as embodying a duty as well as a power to restrict such access.

No. 3. That the extension of ‘thing’ in Section 30 to include vehicles, etc. is not warranted on a proper interpretation of the section.

Craies on Statute Law has long been considered a leading authority on the construction of statute law. It has been cited and commended in innumerable cases in many courts, none of which, to my knowledge, has questioned the correctness of the statement there set out of the ‘ejusdem generis’ rule nor of the warning against over-stretching the rule quoted by the draftsman. Whether ‘thing’ is to be confined to articles of a similar nature or includes things of a different nature was considered by me and I came to the conclusion that the Act as a whole and its purposes, and the phrase ‘other articles of whatsoever kind’ in subsection (2) indicated that wider meaning. Also, on the general purposes, I was satisfied that the list of things specified was based on the fact that they might carry with them a source of infection, that this was their common factor in the sub-section and that consequently ‘other thing’ should be construed as ‘other thing which might carry a source of infection’. Since on the expert advice given to the Minister vehicles might easily carry such a source of infection I think they could be included under ‘other thing’ in the circumstances.

Because elsewhere in the Act there is specific reference to vehicles— e.g. Section 15 (f)—I reached the opinion above set out with some hesitation. The extent of the scope of Section 3 left me assured, however, that in any event there was power to make the prohibition in respect of the articles specified.

No. 4. That S.I. No 283 of 1967 exceeded the powers given to the Minister in that it restricted export.

The view taken by me of the scope of Section 3 has already been set out and would, as I see it, warrant a restriction on movement of animals for export if the Minister had evidence that such restriction was proper for the prevention of the spreading of disease as he had in this case since all movement needed to be controlled.

In addition, Section 30 gave power to restrict movement of animals ‘into any port’ as distinct from importing or landing. This additional power was cited as appropriate and in my view it was appropriate on the wording of Section 30. Any doubts that might be felt were made of no importance because Section 3 remained should the power under Section 30 be called in question.

Section 48 is cited because the Order, in paragraph 8 declares that failure to comply with a condition in a licence is an offence. See Section 48 (1) (c).

In sending on these observations I think it is important that I should state that they represent only my personal views on the matters mentioned. In case there should be any misunderstanding I wish to point out that these orders were drafted by the Draftsman who was of the opinion that they were intra vires, were then passed to me when I formed a similar opinion and were then considered by the Attorney General who also considered them to be intra vires. The bases for the Draftsman’s views have already been given to you and a further memo from him on the points raised in the minutes is now enclosed. The bases for my views have been set out in this memo. I am not in a position to state what the bases for the opinion of the Attorney General were as only he would be competent to give them. I send the Draftsman’s views and my own in the hope that they will be of assistance, but I think that I should point out that the power to make these orders, as far as the Minister was concerned, depended not on the Draftsman’s views nor on my views but on the views of the Attorney General as to their legality.”

The views of the Draftsman (Mr. D. Morris) to which reference is made in the foregoing are as follows:—

“1. I have considered the typescript copy of the Minutes of Evidence given by Mr. Brennan before the Select Committee on Statutory Instruments on 12th June, 1968, and have not thereby been persuaded to change the views expressed in my memo. of the 9th of April last, relating to the Diseases of Animals Act, 1966, and various statutory instruments made thereunder.

2. In relation to section 3 (1) (a), it may be helpful to the Committee if I put my view in a slightly different form, namely, the section must be read as giving the Minister for Agriculture and Fisheries a power to make Orders in addition to the powers to make Orders contained elsewhere in the Act. I base this view on section 3 (1) (b) which section I suggest also clearly indicates that the following sections of the statute cannot be and have not been discharged. Paragraphs (a) and (b) of section 3 are complementary.

3. Any Order under the Act must be made ‘subject and according to the provisions of the Act’. I submit that if this phrase is to be construed as referring generally to the subsequent provisions of the Act it renders section 3 (1) (a), in so far as it relates to the making of Orders for the prevention of the spreading of disease, superfluous, and I do not believe that a Court would treat the section so. As inferred in paragraph 1 of the said memo. the phrase ‘subject and according to the provisions of this Act’ means that Orders must, where necessary, contain provisions which are not in conflict with the provisions of the Act which are relevant in a particular case. Such Orders must also be laid before both Houses in accordance with section 6. In my view the phrase ‘subject to’ as distinct from ‘subject and according to’ (used in section 3 (1)) is narrower in scope. I think had the words ‘and according to’ been omitted the intention of the Legislature would have been less clear and accordingly I cannot agree that the addition of these words narrows the scope of the section, nor do I agree that I expressed the view that the words ‘and according to’ in effect added nothing to the section.

The reference to section 25 in my said memo. is not erroneous. This was intended for purposes of illustration and the fact that section 25 relates only to Class B diseases is not in my opinion relevant in the particular context.

5. As to section 30, firstly I do not share the view expressed by the Chairman in relation to Craies. Secondly, in relation to S.I. No. 283 of 1967, the phrase in the section ‘bringing into a port’ could I think be construed as meaning bringing into a port either for importation or export, especially in view of the fact that the words ‘importation’ and ‘landing’ have previously been used. However, as stated in paragraph 3 of my said memo. I have a doubt in relation to the scope of this particular provision.

6. As to section 48, I find the statement of the Chairman difficult to understand. I cannot see how paragraph 6 of my memo. can be interpreted in the manner mentioned by him.

26 Iúil, 1968.