Department of Finance.
21 Iúil, 1971.
Coiste um Chuntais Phoiblí.
In the course of my examination on 15 July relative to paragraph 10 of the report of the C & A G on the Appropriation Accounts for 1969-70, Mr. Suttle stated that the Finance Accounts for 1969-70 do not show that a $15 million dollar loan was raised in that year or that this $15 million stood to the credit of the Government on 31st March 1970. He also implied that the existence of this loan was hidden from him until he found out about it by accident in course of his audit of accounts of the Central Bank.
The position is, however, that the Ireland 9% Dollar Bonds 1985, which is the issue in question, is duly recorded in the Finance Accounts 1969-70 as foreign debt created in the year in Account XXV (page 46) and as a new item of foreign indebtedness in Account XXVI (page 48). It is also specifically included in the summary of external debt shown in Account XVII (page 50) and in the statement of liquid assets in Account XXVIII (page 52). It does not appear in the Exchequer Account (Account I) because it was not paid into the Exchequer during the financial year 1969-70.
There was no question of concealment at any time. On 17th February the Minister for Finance through the Government Information Bureau announced in press and on radio and television his intention to raise a $15 million loan. On 26th February he similarly announced the completion of the arrangements for the loan, and the terms on which it had been raised. The successful issue of the loan was also referred to in the Capital Budget, 1970 (para. 14) which was published on 10 April, 1970.
The proceeds were paid into the Exchequer on 15 April, 1970 and this receipt by the Exchequer was specifically shown in the weekly Exchequer statement published in Iris Oifigiúil on 21 April, 1970.
Mr. Suttle also put forward the view that Section 4 of the Appropriation Act, 1965 as amended by Section 2 of the Appropriation Act, 1969 is unconstitutional. I enclose herewith for the information of the Committee a note of the opinion of the Department of the Attorney General in the matter.
C. H. MURRAY.
Roinn an Árd-Aighne
Department of the Attorney General
Baile Átha Cliath
20th July, 1971.
Appropriation Act, 1965, Section 4, as amended by the Appropriation Act, 1969, Section 2.
Department of Finance.
I refer to my discussion today with Mr. Sean Murray of your Department regarding the question of the validity or otherwise of the above legislation having regard to the provisions of the Constitution. Hereunder is a note of my opinion in the matter.
The first objection to the validity of the legislation is indicated at Question 1 of the record of the proceedings in the Committee of Public Accounts on the 15th July 1971, and is obviously an invocation of Article 11 of the Constitution. This objection can be disregarded, as the requirements of that Article are “subject to such exception as may be provided by law,” and the legislation impugned constitutes such an exception.
The second objection arises from the provisions of Article 33 (1) of the Constitution. The essence of the objection as stated is that all moneys administered by or under the authority of the Oireachtas must be subject to the control of the Comptroller and Auditor General and that the effect of the legislation is to remove from his control such moneys as might be borrowed and deposited abroad pursuant to section 4 of the 1965 Act as amended. As I understand it, the Comptroller’s concern appears to have been that during the period of deposit abroad, the Minister for Finance could deal with such moneys without getting the prior sanction of the Comptroller.
Article 33 (1) does not provide that all moneys administered by or under the authority of the Oireachtas must be under the control of the Comptroller and Auditor General. It provides that “disbursements” of such moneys must be under such control. Section 4 of the 1965 Act as amended does not provide for any such disbursements. It simply provides for the borrowing of foreign currency, the conversion thereof into Irish money within a limited period, and for the deposit abroad of such currency pending conversion. It may be that a Minister for Finance would find it possible to make use of such borrowed currency during such period otherwise than by deposit (though I imagine that the practical difficulties would be insuperable), but if he did, such use would not be authorised by Section 4 as amended. The constitutionality of that Section cannot be called into question on the basis of some action which some Minister for Finance might contrive to take and which would be totally ultra vires the Section. It is accordingly unnecessary to call in aid of the Section the doctrines of presumption of constitutionality of post-1937 legislation or of constitutional implementation of such legislation as laid down in recent Supreme Court decisions, except to observe that if any real question as to the constitutionality of Section 4 as amended arose (and in my view no such question does arise), it would be the exclusive preserve of the Courts. In all other fora, the doctrines would apply conclusively.
While the question has not been raised, I feel I should observe, lest it should be raised, that the deposit of foreign currency pursuant to Section 4 would not be a disbursement within Article 33 (1). Neither has it been suggested that the function of the Comptroller to audit any account relating to borrowed foreign currency has been in any way impeded by Section 4, and in my view no such suggestion could be made.
Accordingly, in my opinion no question arises as to the validity of Section 4 of the 1965 Act, as amended, having regard to the provisions of the Constitution.
E. M. BARNES.