Committee Reports > List of Committees > Seanad > 1971 > Select Committee on Statutory Instruments (appointed 10th December 1969) > Report No. 02 (1971) - Statutory Instruments [6]

REPORT

PART I

1. Following its appointment the Select Committee examined, in the period ended 15th December, 1970, the 179 instruments which are listed in the Proceedings. The Committee has decided that, of the instruments examined, the special attention of Seanad Éireann should be drawn to the six 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 concerned an opportunity of furnishing such explanations as it thought fit. Copies of the explanations furnished will be found in Appendices I to V of this Report.

PART II

3. The Select Committee has not found it necessary to draw the special attention of Seanad Éireann to any instrument on ground (iii) of the Resolution 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 instrument:—

Sheep Dipping (Tests of Dips) (Fees) Order, 1969 [S.I. No. 245 of 1969].

This order, which is expressed to be made under the authority of sections 3, 6, 10 and 35 of the Diseases of Animals Act, 1966, provides for the payment of a fee of £100 to the Minister for Agriculture and Fisheries in respect of the testing of a dip. As it was not clear to the Committee that authority for the charging of a fee for a dip was conferred by any of the sections mentioned in the citation of authority, the Department of Agriculture and Fisheries was asked to clarify the matter. The Department’s explanation is contained in Appendix II.

The Department is advised that sections 3 and 6 empower the Minister to charge fees. The question of the extent of the general powers conveyed on the Minister under section 3 to make orders which he is not empowered elsewhere in the Act to make was the subject of correspondence* between a previous Committee and the Department of Agriculture and Fisheries in relation to a number of Foot and Mouth Disease orders. After consideration of this correspondence and oral evidence given by a representative of the Department, the Committee decided to draw the special attention of Seanad Éireann to the orders and the over-riding powers claimed for section 3.

It is noted that the only reference to fees in the Act is contained in section 6 which reads—

“No stamp duty shall be payable on, and save as otherwise prescribed, no fee or other charge shall be demanded or made for, any appointment, certificate, declaration, licence or thing under this Act, or for any inspection or other act precedent to the granting, making, or doing of a certificate, declaration, licence, or other thing.”

It seemed to the Committee that this section provided for exemption from stamp duty and fees but, on the basis of the advice given to the Department, it would appear that the Minister is also enabled under the section to charge fees in respect of matters which are expressly stated in the section to be exempt from stamp duty and fees.

The Committee cannot envisage that the Legislature, when it enacted section 6, intended that it would be invoked as authority for the charging of fees. It will be noted that if the phrase relied upon “save as otherwise prescribed” did mean “prescribed elsewhere in the Act”, there would seem little point in section 6 giving non-effective exemption. In fact, nowhere in the Act is there specific power to charge fees which the Legislature usually provides where it is required. In the Committee’s view the charging of fees under the section is an unusual and unexpected use of the powers conferred by the Statute and it is therefore also drawing the special attention of Seanad Éireann to the instrument on ground (ii) of the Resolution of Reference.

5. On ground (ii), 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—

Sheep Dipping (Tests of Dips) (Fees) Order, 1969 [S.I. No. 245 of 1969].

The Committee has referred in the preceding section to its reason for drawing the special attention of Seanad Éireann to this instrument on ground (ii) of the Resolution of Reference.

Redundancy (Rebates and Weekly Payments) (Amendment) Regulations, 1969 [S.I. No. 134 of 1969].

These regulations are expressed to be made under the authority contained in section 36 of the Redundancy Payments Act, 1967, subsection 2 (a) of which empowers the Minister for Labour to make regulations “requiring an employer entitled to a rebate to make a claim therefor and prescribing the time within which such a claim is to be made”. In purported exercise of these powers the Redundancy (Rebates and Weekly Payments) Regulations, 1968, provided that a claim for a rebate “shall be made before the expiration of six months from the date on which the employer made the relevant lump sum payment”. This provision is now amended by article 2 (a) of the present regulations which authorises the Minister for Labour, in certain circumstances, to allow a claim for a rebate to made “within such further period as the Minister may in any particular case or class of cases allow”. It seemed to the Committee that the effect of this amendment was to allow for the determination by administrative action of the time within which a claim for a rebate is to be made which the parent statute appeared to envisage being prescribed by regulations and the Department of Labour was accordingly requested to furnish an explanatory memorandum on the point.

It is noted at paragraph 1 of the Department’s reply (see Appendix III) that it accepts the Committee’s view that on a strict interpretation of section 36 (2) (a) of the Act, the time limit within which a rebate claim can be made ought to be ascertainable from the regulations.

6. On ground (iv), “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 instrument:—

Children Act, 1941 (Section 21) Regulations, 1969 [S.I. No. 216 of 1969].

Order made: 30th October, 1969; Laid: 8th December, 1969.

It will be noted from the explanation (see Appendix I) furnished by the Department of Education that the delay in laying the instrument before Seanad Éireann was due to the fact that the head of the section which deals with the matter was on sick leave.

Reports of previous Committees have adverted to the necessity for the laying of instruments within the shortest possible period of time after making and in the Committee’s view it is most important that every precaution be taken to ensure that instruments are presented to the Seanad within seven days after making.

7. On ground (v), viz. “that for any special reason its form or purport calls for elucidation”, the special attention of Seanad Éireann is drawn to the following three instruments:—

Customs-free Airport (Extension of Laws) (No. 3) Regulations, 1969 [S.I. No. 127 of 1969].

These regulations are expressed to be made under section 13 of the Customs-free Airport Act, 1947, which requires that the consent of the Minister for Finance be obtained to the making of regulations under that section. It will be noted that the regulations were made by the Minister for Transport and Power on 1st July, 1969 but were not consented to by the Minister for Finance until 3rd July. In the absence of a date of commencement clause in the instrument the question arose as to the date on which the regulations became effective and the Department of Transport and Power was requested to clarify the matter.

The Department has been legally advised (see Appendix IV) that the instrument, though made on 1st July, did not become operative until the necessary consent had been given, i.e. on 3rd July.

The question of instruments which require to be signed by more than one authority was referred to in a number of Reports by previous Committees. In paragraph 9 of a report dated 19th March, 1969, the Committee concerned adverted to an apparent conflict of opinion in relation to the operative date of instruments which require more than one signature and it expressed the opinion that varying dates of signatures should not be permitted to give rise to doubts as to the date of commencement of any instrument. It, accordingly, recommended that when there may be any possibility of such doubts arising the instrument should contain an appropriate clause providing for its coming into operation on a stated date. This recommendation appears to have been overlooked in the present instance. The Select Committee trusts that it will not find it necessary in the future to remind Departments of the need to comply with this recommendation.

Mines (Managers and Officials) Regulations, 1970 [S.I. No. 74 of 1970].

Mines and Quarries (Notification of Accidents) Regulations, 1970 [S.I. No. 77 of 1970].

The signature of the Minister for Labour appears above the schedules to each of these instruments. The Committee is therefore drawing special attention to them because it does not regard the schedules as properly attested.

It will be observed from the explanation (see Appendix V) furnished by the Department of Labour that, because of pressure of work, the Department did not advert to the need to comply with the recommendation of an earlier Committee that schedules to instruments be properly attested by appearing above the Minister’s signature.

(Signed) W. A. W. SHELDON,

18th August, 1971.

* T.218—Prl. 778, 19th March, 1969.