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

APPENDIX X.

Instruments requiring Approval, Concurrence or Consent.

An Rúnaí,

An Roinn Airgeadais.

At its meeting on 24th ultimo the Select Committee on Statutory Instruments discussed certain features of those statutory instruments which a Minister or other instrument making authority may make only with the approval, concurrence or consent of another.

In 1956 certain difficulties arose in connection with instruments requiring the signature of more than one Minister. Following correspondence with the Select Committee of the day (your ref. S.46/8/55) your Department issued a Circular (21/56) asking sponsoring Departments to ensure that such instruments bear a common date of signature.

The common date of signature avoids doubts arising as to the date on which the provisions of an instrument requiring more than one signature came into operation. However it has not been considered appropriate to recommend the procedure for adoption where authorities other than members of the Government are involved. The point arose in 1959 in connection with regulations made by the Foyle Fisheries Commission which at present require the approval of the Minister for Agriculture and Fisheries and the Ministry of Agriculture for Northern Ireland. The solution adopted in that case (T. 183—Pr. 6167: paragraph 9) was to provide for the date of commencement to be set out in the text of the instrument.

Recently the question as to when an instrument requiring two signatures comes into operation, if signed by the Ministers concerned on different dates, came to the attention of the present Committee in the case of the Redundancy (Resettlement Assistance) Regulations, 1968 (S.I. No. 8 of 1968). Through an oversight the instructions in Circular 21/56 were not observed in that case. It appears from correspondence (copies attached) with the Department of Labour that these regulations were implemented before they were signed by the Minister for Finance. The Committee must therefore consider whether it is obliged under its terms of reference to draw special attention to the instrument on the grounds “that it purports to have retrospective effect where the parent Statute confers no express authority so to provide”.

At present many instruments include the date of commencement in the text. The Committee is inclined to the view that if such a practice were adopted generally it might not only make for clarity but also obviate the need for the common date of signature. It believes, however, that the date of commencement would require to be not earlier than the latest date of signature unless the parent statute authorised the making of instruments with retrospective effect. To assist it in deciding whether or not to make a recommendation to Seanad Éireann in this matter the Committee would like to have the views of your Department.

Arising out of correspondence (copies attached) with the Department of Transport and Power the Committee has also been considering the form in which the approval or concurrence of a Minister should be given where such is statutorily required. The subject matter of the correspondence was the Turf Development Act, 1953 (General Employees) Superannuation (Amendment) (No. 3) Scheme, 1967 which was approved by the Minister for Transport and Power and concurred in by the Minister for Finance on 29th December, 1967. In the Committee’s view what section 6 (7) of the Turf Development Act, 1953 requires to be laid before each House of the Oireachtas is the amending scheme made by Bord na Móna under section 6 (6) with the approval of the Minister for Transport and Power and the concurrence of the Minister for Finance. What in fact has been laid is a statutory instrument made by the Minister for Transport and Power and concurred in by the Minister for Finance which incorporates provisions of an amending scheme which the instrument implies but does not state was made by Bord na Móna. The Committee proposes to comment on this in its report but it is also concerned with the general implications of the Department’s contention that “the Minister’s approval to the Scheme does not have to be given by means of an Instrument.”

If the Department means that the Minister is not legally obliged to make a statutory instrument incorporating the terms of the scheme the Committee agrees: indeed it considers that this procedure is not the one contemplated by the parent statute. The Committee, however, believes that the instrument being approved must be endorsed appropriately by the approving Minister and that in this sense the approval can only be given “by means of an instrument”. It would come as a surprise to the Committee if it were to be seriously contended that an instrument requiring the approval of a Minister could be laid before Seanad Éireann without the approval appearing on the instrument. As the Minister for Finance is the second authority whose approval is most often required the Committee would appreciate the assistance of your observations on this matter also.

Cléireach an Roghchoiste.

1 Samhain, 1968.

Cléireach an Roghchoiste um

Ionstraimí Reachtúla,

Seanad Éireann.

I am directed by the Minister for Finance to refer to your minute of 1 Samhain, 1968, and enclosures regarding certain features of statutory instruments which a Minister or other instrument-making authority may make only with the approval, concurrence or consent of another.

The procedure laid down in paragraph 12 of this Department’s Circular 4/59 appears to have been satisfactory in practice—apart of course, from the case of the Redundancy (Resettlement Assistance) Regulations, 1968, in which the procedure was inadvertently overlooked. In the circumstances the Minister is not convinced of the need for the change which the Committee is considering, having regard, especially, to part 1 of the comments (copy enclosed) of the Parliamentary Draftsman.

The views of the Parliamentary Draftsman on the matter arising out of the Turf Development Act, 1953 (General Employees) Superannuation (Amendment) (No. 3) Scheme, 1967, are set out at part 2 of the enclosure to this minute. The Minister agrees that the practice whereby, for convenience, ministerial approval is given by making the appropriate endorsement on the instrument, and the endorsed copy is laid before Seanad Éireann, where required, is the most suitable procedure.

It is understood that to meet the wishes of the Committee, the Department of Transport and Power have changed the format of a further amending scheme recently made by Bord na Móna to show on the face of the instrument that the scheme was in fact made by Bord na Móna.

SEÁN F. MURRAY.

20 Feabhra, 1969.

Memorandum by the Parliamentary Draftsman.

1. The solution suggested in the fifth paragraph of Mr. Kilroy’s letter of 1 November, 1968, for avoiding the problems arising when instruments do not bear a common date of signature by two Ministers may not be fully satisfactory. Because if a commencement date not earlier than the latest date of signature is to be included in an instrument, advance knowledge of dates of signature is essential. In most cases this is available, but in the “difficult” ones of the kind under consideration it is not. Therefore, unless in every case a remote commencement date is provided for (and obviously if “early” or “immediate” commencement is required, this cannot be done), the problems will arise again.

Furthermore, section 9 (2) of the Interpretation Act, 1937, provides that statutory instruments shall, unless the contrary intention is expressed, be deemed to be in operation from the midnight immediately before the day on which they are made. In appropriate cases, it is the practice to rely on this provision, and the insertion in an instrument of an express provision having the same effect would not be desirable.

It should be pointed out that where an instrument is made by one Minister “after consultation” with a second Minister or other person, the only indication in the instrument of the requisite consultation having been held is in a recital at the beginning, and this is regarded as adequate. A similar recital is included in instruments of the kind under discussion. If, in all cases, it were possible to ensure that the requisite consents or concurrences were obtained before signature by the Minister “making” the instrument, this recital would of course be sufficient and the practice of having the signature of the consenting or concurring Minister on the instrument would not be necessary.

2. Regarding the matter referred to in the last paragraph of Mr. Kilroy’s minute, section 6 of the Turf Development Act, 1953, provides, in effect, that superannuation schemes made by Bord na Móna shall not be carried out unless approved by the Minister for Transport and Power with the concurrence of the Minister for Finance. In the section, as in many similar ones, there is no indication of, or requirement as to, the manner in which the approval is to be effected or, when effected, notified to Bord na Móna or the public. Therefore it is open to the Minister to approve a scheme in any manner (whether with or without writing) that he chooses. If he does so other than by endorsing the approval on the scheme, it would obviously be necessary that Bord na Móna be informed of the approval so that it could proceed to carry out the scheme. The information could be conveyed by any means the Minister selects —a verbal communication, telephone or letter for example. If it were conveyed by any of these means, it would be desirable, but not essential, to endorse on the scheme (and on copies of it) notice of the fact that the Minister had approved it. In practice, for convenience, the approval is given in such cases by making the appropriate Ministerial endorsement on the relevant instrument, and a copy of it, so endorsed, is laid before Seanad Éireann, where required. This would seem to be the most suitable procedure. But, in reply to the Committee’s query, it must be stated that an instrument requiring Ministerial approval may (unless the approval, or notice of it, is required by the relevant parent statute to be endorsed on the instrument) legally and properly be laid before Seanad Éireann without bearing the endorsement or notice.