Committee Reports > List of Committees > Seanad > 1973 > Select Committee on Statutory Instruments > Report No. 03 - Statutory Instruments

APPENDIX II.

Delays in Presentation.

(i)

An Rúnaí,

An Roinn Oideachais.

I am directed by the Select Committee on Statutory Instruments to say that arising out of its examination of statutes made by the National University of Ireland and its constituent colleges in the period since the appointment of this Committee (i.e. 10th December, 1969) it notes the long intervals between the date of making and the date of presentation to Seanad Éireann of the statutes referred to in the attached statement. In this connection I am to say that it is the practice of the Committee to bring to the attention of the Seanad instances of delays of more than seven days between the making of a statutory instrument and its presentation. Before proceeding to report the delays to the Seanad, however, the Committee would welcome any observations your Department may wish to make on the matter.

The Committee also notes that the undermentioned statutes which were made on the dates indicated have not yet been presented to Seanad Éireann and it would be glad to have an explanatory memorandum on this point.

Statute LXXXV of University College Cork—1st December, 1970.

Statute LXXXVIII of University College Cork—30th November, 1971.

Cléireach an Roghchoiste.

27 Iúil, 1972.

Statement

(ii)

An Rúnaí,

An Roinn Oideachais.

I am directed by the Select Committee on Statutory Instruments to refer to my letter of 27 Iúil, 1972 relating to delays in the presentation of university statutes to Seanad Éireann and to enquire whether you are now in a position to let me have a reply.

Cléireach an Roghchoiste.

17 Samhain, 1972.

(iii)

An Rúnaí,

An Roinn Oideachais.

I am directed by the Select Committee on Statutory Instruments to refer to my letters of 27 Iúil and 17 Samhain, 1972 regarding delays in the presentation of university statutes to Seanad Éireann and to say that the Committee would be glad to have a reply by the 17th instant. In this connection I am to say that the Committee proposes to make a report to Seanad Éireann on the matter of university statutes generally and it wishes to complete its consideration of outstanding correspondence.

Cléireach an Roghchoiste.

10 Eanáir, 1973.

(iv)

Registrar,

National University of Iireland,

49 Merrion Square,

Dublin 2.

A Chara,

Further to previous correspondence on the subject of University statutes I am directed by the Select Committee on Statutory Instruments to state that it notes the long intervals between the date of making and the date of presentation to Seanad Éireann of each of the statutes referred to in the attached statement. In this connection I am to say that it is the practice of the Committee to bring to the attention of the Seanad instances of delays of more than seven days between the making of a statutory instrument and its presentation. Before proceeding to report the delays to the Seanad, however, the Committee would welcome any observation you may wish to make on the matter.

The Committee also notes that the undermentioned statutes which were made on the dates indicated have not yet been presented to Seanad Éireann and it would be glad to be furnished with an explanatory memorandum on this point.

Statute LXXXV of University College Cork—1st December, 1970.

Statute LXXXVIII of University College Cork—30th November, 1971.

Statute CLXV of National University of Ireland—26th October, 1972.

Statute LXXI of University College Dublin—3rd February, 1972.

Clerk to the Select Committee on Statutory Instruments.

26 Eanáir, 1973.

Statement

(v)

Mr. C. P. O’Briain,

Clerk to Select Committee on Statutory Instruments,

Seanad Éireann,

Dublin 2.

Dear Mr. O’Briain,

I am in receipt of your letter of 26 January regarding the delay between the making of University Statutes and their presentation to the Oireachtas. When a University Statute is passed by Senate it is then sent to the printers to have the date of the passing of the Statute and the names of the persons who were present at the sealing of the Statute inserted. This normally takes about 14 days after which it is sent to the Department of Education for transfer to the Oireachtas.

The Senate is aware of the long delays between the time Statutes are sent to the Department and their presentation to the Oireachtas and have protested to the Department about the delay but nothing has been done to expedite matters.

The Senate is greatly perturbed about this as it means that statutory posts which urgently need to be filled cannot be filled until the Statutes creating them have passed through all stages and the delay by the Department in forwarding them to the Oireachtas is causing serious difficulties.

I am sending a copy of your letter to the Presidents of the Constituent Colleges and they no doubt will communicate with you as regards the delay in dealing with College Statutes.

In your letter you mention Statute CLXV N.U.I. passed on 26 October, 1972. This Statute was sent to the Department on 13 November, 1972. I would also point out that Statute CLXIV which was sent to the Department on 2 August, 1972, has not as far as I am aware been yet sent to the Oireachtas although both of these Statutes have created statutory posts which urgently need to be filled.

It is possible to shorten the time between the passing of a Statute by the University and its dispatch to the Department and I will see that this is done in future, but with regard to the length of time it is with the Department before being sent to the Oireachtas we are powerless.

The Senate would welcome any suggestions which your Committee may care to make which would help to resolve this difficulty.

5 February, 1973.

(vi)

Secretary’s Office,

Administration building,

University college, Dublin.

Mr. C. P. O’Briain,

Clerk to the Select Committee,

Seanad Éireann,

Baile Átha Cliath 2.

Dear Sir,

The Registrar of the National University of Ireland has referred your letter of 26th. January to me in connection with Statute LXXI of this College.

I enclose copy of a letter which I sent to the Department of Education dated 17th February, 1972, enclosing copy of the Statute, with the expectation that it would be put on both tables of the Oireachtas. I cannot understand why the Department did not carry this out and when you have obtained an explanatory memorandum on this point from the Department, I should be glad if you would let me have a copy, as I also am more than interested to discover the incredible delay that has occurred.

In the course of your deliberations, I should be glad if you would consider some timelimit by which the Department of Education must either place the Statutes on the tables of the Houses, or the Minister must move to disallow them.

Secretary and Bursar.

7 February, 1973.

Enclosures to letter dated 7 February, 1973.

The Minister for Education,

Department of Education,

Marlborough Street,

Dublin 1.

Dear Sir,

I am directed by the President to send you twelve (12) copies of Statute LXXI of University College, Dublin, recently made by the Governing Body of this College.

I enclose also a form of advertisement (in duplicate) in reference to the Statute for insertion in Iris Oifigiúil.

Secretary and Bursar.

17 February, 1972.

Form of Advertisement.

Irish Universities Act, 1908.

Notice is hereby given that the Governing Body of University College, Dublin, has made a Statute (to be known as Statute LXXI of University College, Dublin), in the manner prescribed bearing date 3rd day of February, 1972. Copies of the Statute may be obtained from the undersigned.

J. P. MacHALE,

Secretary to the Governing Body,

University College, Dublin.

17th February, 1972.

(vii)

President’s Office,

University college,

Cork.

C. P. Ó Briain, Uas.,

Clerk to the select committee on statutory instruments,

Seanad Éireann,

Dublin 2.

Dear Sir,

I have to refer to your letter of 26 January, 1973 to the Registrar of the National University of Ireland in which reference is made to the delays which have occurred in the presentation to the Oireachtas of—

(a) Statute LXXXV of University College Cork, made on 1 December 1970, and

(b) Statute LXXXVIII of University College Cork, made on 30 November 1971.

The Registrar of the National University has sent a copy of your letter to me in order that I may explain to you what happened in relation to the Statutes in question.

I have to confirm that Statute LXXXV was made in the prescribed manner by the Governing Body of the College on 1 December 1970. On 8 January 1971 the Secretary of the College wrote to the Secretary, Department of Education, Dublin informing him of that fact, enclosed twelve copies of the Statute as well as copies of a form of notice for insertion in Iris Oifigiúil and asked that he should “take the appropriate steps in regard to this Statute”. The Secretary of the Department of Education was also asked to advise the College of the date on which the Statute had been laid on the Tables of both Houses of the Oireachtas, of the date on which the notice regarding the making of the Statute appeared in Iris Oifigiúil as well as, in due course, of the time when the Statute had been before the Oireachtas for the prescribed period.

Since by 1 March 1971 the Secretary of the College had received no reply to his letter of 8 January he again wrote to the Secretary, Department of Education drawing attention to the delay in replying and the apparent failure to lay the Statute before the Oireachtas adding “This failure is a breach of Section 5 (2) (as adapted) of the Irish Universities Act, 1908, which provides that Statutes made under the Act ‘shall be laid as soon as may be before both Houses of the Oireachtas”’. A bare acknowledgement of this letter dated 9 March 1971 was received in reply with a follow up letter in similar terms dated 19 March 1971.

As no further communication from the Department of Education on the matter had been received by 5 April 1971, on that date the Secretary of the College sent effectively identical letters in the following terms to the Clerk of the Dáil and the Clerk of the Seanad.

“The power of making statutes is vested in the College by section 4 of the Irish Universities Act, 1908, while the procedure for validating the instruments is set forth in section 5. Sub-section (1) of the latter section, as adapted by sections 4 and 5 of the Adaptation of Enactments, Act, 1922, reads as follows:—

‘When any statute has been made under this Act, a notice of its having been made and of the place where copies can be obtained shall be published in Iris Oifigiúil, and the statute shall be laid as soon as may be before both Houses of the Oireachtas.’

I have been directed to write to you to ascertain whether the procedure for placing on the table of the Senate statutes enacted by this College is covered by Standing Orders or by the practice in connection with the laying of similar instruments before the House. If so, details of such procedure would be appreciated.”

The Deputy Clerk of the Dáil replied, on 14 April 1971, that Section 2 (a) of the Houses of the Oireachtas (Laying of Documents) Act, 1966 and Standing Order No. 139 of the Standing Orders of Dáil Éireann relate to the matter and provided the text of the latter. After a reminder, the Clerk of the Seanad replied on 22 April 1971 referring to Section 2 (b) of the aforementioned Act and stating that Standing Order 115 of the Standing Orders of Seanad Éireann relate to Public Business providing that all papers and documents laid before the Seanad shall be considered to be public. He added that “In practice the delivery of a document to the Clerk is deemed to be the laying of it before the Seanad”.

On 6 May 1971 the Secretary of University College, Cork sent, by registered post, the following letter to the Secretary, Department of Education, Dublin.

“Irish Universities Act, 1908—sec. 5 (i)”

“I have been directed by the President to refer to previous correspondence (your ref. C.O.3/4/2) in connection with the laying of Statute LXXXV of University College Cork on the tables of both Houses of the Oireachtas. This Statute, with copies of the necessary Notice for insertion in Iris Oifigiúil, was forwarded to you on 8 January, 1971. Subsequently—on 18 February, 1971—the necessary copies of Statute LXXXVI. made by the Governing Body on 19 January, 1971, and of the relevant Notice for Iris Oifigiúil were forwarded to you. So far, however, you have not intimated that this Statute has been placed on the tables of the Houses of the Oireachtas.

On 1 March I wrote you pointing out that statutes made in accordance with the Irish Universities Act, 1908, as adapted, ‘shall be laid as soon as may be before both Houses of the Oireachtas’. The Governing Body at a recent meeting considered the action of the Minister for Education in failing to place the statutes before the Oireachtas ‘as soon as may be’ to be in breach of the act and decided that legal advice on the situation should be obtained by the College. The advice received confirms the views of the College and also asserts that, despite the fact that for many years the practice has obtained of sending copies of College statutes to the Minister for Education for laying before the Oireachtas, nevertheless, this is not a statutory requirement and that the matter of laying such documents before the Oireachtas is one for the statute-making body, namely, University College Cork.

In these circumstances the President directs me to request that the Minister for Education should forthwith place Statutes LXXXV. and LXXXVI. of this College on the tables of both Houses of the Oireachtas and should inform the College that this has been done. Should the College not learn from you within ten days from this date that the provisions of the Act have been complied with it proposes, in order to preserve its legal rights and to secure compliance with the provisions of the Irish Universities Act, 1908, itself to lay the Statutes before the Oireachtas.”

It will be noted that this letter refers not only to Statute LXXXV but also to Statute LXXXVI, which had been duly made by the Governing Body on 19 January 1971 and sent to the Minister for Education on 18 February 1971 for placing before the Oireachtas. When the College was just on the point of taking the action mentioned in the final paragraph of the letter a communication was received from the Department of Education, dated 19 May 1971, stating that Statute LXXXVI had been forwarded for presentation to both Houses of the Oireachtas and promising a further communication in relation to Statute LXXXV. The following reply was sent by registered post to the Secretary, Department of Education, Dublin on 21 May 1971.

“Irish Universities Act, 1908—sec. 5 (i)”

“Your letter (ref. C.O.3/4/2) of 19 Bealtaine is acknowledged. In reply I have been directed by the President to state that copies of Statute LXXXV. and LXXXVI. were to have been forwarded today for laying on the tables of both Houses of the Oireachtas in order that the provisions of section 5 (i) of the Irish Universities Act, 1908, might be complied with. It is noted, however, that this has now been done in respect of Statute LXXXVI.; also, that a further communication will be issued ‘shortly’ in relation to Statute LXXXV. In view of this undertaking the President has directed that the submission of Statute LXXXV. by the College be postponed till Monday, 31 May, 1971, but no later.”

The Department wrote to the College on 26 May 1971 (five and one-half months after the original submission of the Statute) enquiring as to the considerations which influenced the College in including certain provisions in the Statute. It was felt that this could be more satisfactorily done by verbal rather than by written communication and a meeting was arranged between representatives of the College and of the Department of Education which took place on 2 June 1971. As a result of this meeting the Minister for Education wrote to the President of the College on 8 June 1971 to the effect that

“The Minister will therefore feel himself constrained, after presentation of Statute LXXXV to both Houses of the Oireachtas in accordance with Section 5 of the National University of Ireland Act, 1908, to introduce a motion to disallow those parts of the Statute which deal with the amendment of the existing superannuation conditions.”

The President replied on 11 June 1971 that he proposed to have the matter considered by the Governing Body of the College on 17 June and said that the College did not propose itself to present the Statute in question to both Houses of the Oireachtas until the matter had been further clarified.

After the meeting of the Governing Body in question the President wrote, on 23 June 1971, to the Minister for Education to the following effect—

“Further to my letter to you of 11 June, 1971 in regard to the presentation of Statute LXXXV of this College to the Oireachtas I now write to inform you that the matter was considered by the Governing Body at its meeting last week. In the light of the Minister’s decision the Governing Body felt that it had no option but to agree to the amendment of the Statute. It has sought and obtained legal advice and has been informed that the withdrawal of a Statute which has reached this stage is not a procedure envisaged by the provisions of the Act of 1908, and that, interpreting Section 5 (i) of that Act in its literal sense when the Statute has been made by the Governing Body it must, at some time, be laid before the Oireachtas, even if the Governing Body has by then decided to revoke it.

The advice which we have received is that the Governing Body should, to meet the Minister’s requirements, make an amending Statute and arrange to have it laid before the Oireachtas simultaneously with Statute LXXXV. In doing so, the Governing Body would then be complying with all the statutory requirements in regard to Statute LXXXV but only the amended version would become effective and presumably the Minister would not then consider it necessary to introduce the motion to disallow the parts of Statute LXXXV which are not acceptable to him.

On the assumption that the Minister would agree to such a procedure the Governing Body has taken preliminary steps in the preparation of an amending Statute but since the appropriate procedure will depend on the agreement of the Minister and, to some extent, on parliamentary procedure I feel that it is necessary to have consultations with the Officers of the Department of Education.”

The meeting suggested took place on 16 July, 1971 and the Minister for Education, on 13 August, 1971 wrote to the President saying:

“The Minister is advised that the procedure which was suggested at that meeting with regard to the presentation to the Oireachtas of Statute LXXXV and of the amending Statute LXXXVIII is appropriate, i.e. that both Statutes should be laid before the Oireachtas simultaneously.

With regard to the proposed content of Statute LXXXVIII, however, the Minister has asked me to say that in as much as it contains superannuation provisions which are more generous than those which apply in the public service generally, he would feel constrained to introduce a motion to disallow those parts of the proposed Statute which would amend existing superannuation conditions.”

The Governing Body of the College, despite the views of the Minister for Education as set out in his letter of 13 August 1971, decided at its meeting on 30 November 1971 to make in the prescribed form, Statute LXXXVIII. The final form of this Statute was identical with that provisionally adopted at the Governing Body meeting on 17 June 1971 and given to the officials of the Department of Education at the meeting on 16 July 1971 referred to above. Statute LXXXVIII was transmitted in the usual way to the Department of Education on 15 December 1971 with the request that it (and Statute LXXXV) should be laid before both Houses of the Oireachtas. This communication was acknowledged by letter of 20 December 1971. In a further letter from the Minister for Education dated 17 January 1972 he inquired

“if it is the wish of the Governing Body that the necessary steps be taken to present the College’s Statutes LXXXV and LXXXVIII to Dáil Éireann and Seanad Éireann notwithstanding the obligation which would thus be placed upon him of introducing a motion to disallow those parts of the Statutes in question which provide in the case of University College, Cork, for superannuation conditions which are substantially out of line with those which apply generally in the public service.”

On 21 January 1972 the Acting Secretary of the College wrote to the Secretary, Department of Education, Dublin to the following effect:

“With reference to your letter (ref. C.O. 3/4/2) dated 17 Eanáir, 1972, I have to inform you that it is the wish of the Governing Body that the necessary steps be taken to present the College’s Statutes LXXXV. and LXXXVIII. to Dáil Éireann and Seanad Éireann.”

I must apologise for the perhaps excessive detail in this letter but I feel that it is necessary in order to make the tangled happenings in relation to these two Statutes clear. I scarcely need to point out that over twelve months have now elapsed since the last mentioned letter was sent to the Department of Education and no action has been taken so far to place the Statutes before the Oireachtas. I have to add that we have recently sought advice from Senior Counsel as to what legal steps are available to the Governing Body to oblige the Minister to place the Statutes in question before the Oireachtas. This advice has not yet been received.

There is a further matter in connection with the enactment of Statutes by University College, Cork which I would wish to bring to your attention. It was originally the custom of the College to send the official notice for presentation to The Under-Secretary, Dublin Castle, Dublin “to take the necessary steps in connection with the matter”. The last occasion on which this was done was on 25 March 1922 in respect of Statute XVII. On the next occasion Statute XVIII was similarly transmitted on 16 February, 1924 to The Minister for Education, Government Buildings, Dublin., though it has not been possible to trace in the College files any official direction in connection with the change. The custom of using the Minister for Education as intermediary in this fashion, continued during the subsequent years.

Following our experience with Statute LXXXIV the documents in relation to which were sent to the Secretary, Department of Education on 14 July 1970 and which were not laid on the tables of the Dáil and Seanad until 28 October 1970 and 15 December 1970, respectively, though the Dáil sat until 29 July 1970 and the Seanad until 31 July 1970, we inquired of our Solicitor as to whether the Minister for Education had any power to hold up unduly the laying of College Statutes before the Houses of the Oireachtas, in view of the explicit terms of Section 5 (i) of the National University of Ireland Act of 1908. The advice we received was to the effect that, despite the fact that for many years the practice had obtained of sending copies of the College Statutes to the Minister for Education for laying before the Oireachtas, nevertheless this is not a statutory requirement and that the matter of laying such documents before the Oireachtas is one for the statute-making body, namely University College, Cork.

In the light of the foregoing, on the enactment by the Governing Body, on 29 June 1971, of Statute LXXXVII of University College, Cork, three copies each of the Statute were sent on 6 September 1971 to the Clerk of the Dáil and to the Clerk of the Seanad. Copies of the notice regarding the making of the Statute which had been sent to the Controller, Stationery Office, Dublin for insertion in Iris Oifigiúil were also enclosed, with requests that the Statute should be placed on the table of the Dáil and of the Seanad respectively in compliance with the Irish Universities Act, 1908. Six copies of the Statute and copies of these letters were also sent to the Secretary, Department of Education, Dublin on the same date.

No acknowledgements were received of these communications to the Clerks of the Dáil and Seanad and requests for such were despatched on 27 September 1971. In response a letter dated 29 September 1971 was received from The Librarian of the Oireachtas apologising for the delay and stating

“The above mentioned Statute is at present being considered by the Department of Education, thus the delay in its insertion in Iris Oifigiúil”.

A letter of 5 October 1971 to the Librarian enquiring as to his function in the matter produced the following reply, dated 7 October 1971:

“Your letter of 5 October, 1971 regarding University College Cork Statute LXXXVII refers.

I am to inform you that the Statutes forwarded with your letters of 6 September, which were addressed to the Clerk of the Dáil and the Clerk of the Seanad, did not include the required presentation forms. Accordingly, the Department of Education who normally arrange for the presentation of such Statutes were consulted in the matter. At the Department’s request, your letters and enclosures were forwarded to them for examination.

The Department have now intimated to me that a letter setting out its position in the matter will shortly be issued to you.”

In response the Secretary, University College, Cork wrote to the Librarian of the Oireachtas, on 11 October, 1971, as follows:

“Irish Universities Act, 1908—Sec. 5 (i)

Statute LXXXVII of University College, Cork.”

“I acknowledge receipt of your letter of 7 Deireadh Fómhair. It refers to my letters of 6 Meán Fómhair to the Clerk of the Dáil and the Clerk of the Senate and the statutes enclosed therewith. Am I to understand that my letters and enclosures were forwarded to you by the addressees?

You also refer to “the required presentation forms”. Before forwarding the statutes enquiries were made as to the procedure for presentation of the instruments. The required information was furnished but no mention was made of presentation forms. Perhaps you would be good enough to let me know where the forms may be obtained in order that the presentation requirements may be fulfilled.

It is not understood why the Department of Education should be consulted about the presentation of an instrument to the Houses of the Oireachtas in accordance with an Act of Parliament. Neither is it understood why the Department should request that my letters and enclosures to the Houses of the Oireachtas should be forwarded to it “for examination” when, in fact, copies of the letters and enclosures referred to were furnished to the Department on the date they were posted for presentation.”

The reply of 20 October 1971, was (referring to a letter from the Department of Education quoted below) as follows:

“With further reference to your letter of 11 Deireadh Fómhair, 1971, I understand that a letter setting out the position in relation to the laying of Statute LXXXVII of University College, Cork before the Houses of the Oireachtas has been issued to you by the Department of Education.”

The appropriate notice of the making of Statute LXXXVII, for insertion in Iris Oifigiúil, was sent to the Controller, Stationery Office, Dublin, on 6 September, 1971 and a reminder on 27 September. A reply of 30 September 1971 stated:

“I am to refer to your letter of the 27th inst. re Notice for insertion in the Iris Oifigiúil and to say that we have been requested by Oireachtas Éireann to delay publication pending approval from the Department of Education.”

In response to this a letter dated 5 October 1971 was sent by the Secretary, University College, Cork to the Controller, Stationery Office, Dublin in the following terms:

“Irish Universities Act, 1908—Sec. 5 (i)

Statute LXXXVII of University College, Cork.”

“I acknowledge your letter of 30 Meán Fómhair, the contents of which are noted. In reply I have been directed to refer you to the following provision (as adapted) of the Irish Universities Act, 1908, viz.:—

‘5 (i) When any statute has been made under this Act, a notice of its having been made and of the place where copies can be obtained shall be published in Iris Oifigiúil and the statute shall be laid as soon as may be before both Houses of Parliament’.

This clearly places an onus on the College to submit a notice to you for publication when a statute has been made and an onus on you to publish such a notice when received. The College has discharged the onus on it in respect of Statute LXXXVII. I shall thank you for a reference to the statutory provision which authorises you to delay discharging the onus on you”.

The reply, dated 28 October, 1971 (again referring to the letter from the Department of Education quoted below) merely stated that

“The matter should be taken up with the Department of Education. It is understood that the Department addressed a communication to you on the matter on 14 October, 1971”.

The Secretary of the College wrote, on 10 October, 1971, to the Controller, Stationery Office, Dublin as follows:

“Irish Universities Act, 1908—Sec. 5 (i)

Statute LXXXVII of University College, Cork.”

“I have your letter of 28 Deireadh Fómhair and in reply desire to confirm that I have received the communication from the Department of Education to which you refer. However, this communication does not deal with the matter of the onus on you under sec. 5 (i) of the above Act and, in the circumstances, I must repeat my request for a reference to the statutory provision which authorises you to defer discharging that onus”.

The only reply ever received to this was a formal acknowledgement dated 5 January, 1972, of a reminder despatched on 30 December, 1971.

The communication from the Department of Education dated 14 October, 1971 (already mentioned above) was in reply to the transmission to it on 6 September, 1971, of copies of Statute LXXXVII and of the letters to the Clerks of the Dáil and Seanad and was to the following effect:

“I am directed to refer to previous correspondence regarding Statute LXXXVII of University College, Cork.

It is noted from your letter of 6 Meán Fómhair, 1971, and enclosures that you sent copies of this Statute direct to Cléireach na Dála and Cléireach na Dála and Cléireach an tSeanaid for presentation to both Houses of the Oireachtas and that you also forwarded direct (presumably to the Editor) the usual notice regarding the making of the Statute for insertion in Iris Oifigiúil.

To the extent that this procedure represented a departure from normal practice, it is presumed that you acted on the basis of the legal advice which was communicated in terms of the letter which the President of the College addressed to the Minister’s Private Secretary on 23 June, 1971.

There are, however, certain procedures to be followed in connection with the presentation of papers (including University Statutes) to the Houses of the Oireachtas, and these procedures involve the papers being accompanied by a form to be signed by the Head of the appropriate Government Department.

It will be appreciated that having regard to the provisions of Section 5 of the Irish Universities Act, 1908, as adapted, under which action may be taken with a view to the disallowance of a Statute or any part thereof, this Department must take every precaution to ensure as far as practicable that no Statute which is presented to the Houses of the Oireachtas contains anything which might be likely to form a justifiable basis for a petition to disallow the Statute in whole or in part or might render the Statute open to valid criticism. For this purpose every Statute submitted to the Department by a University or University College for laying before the Houses of the Oireachtas must be examined very carefully and in detail in the Department before it is forwarded for presentation. This examination is carried out as expeditiously as circumstances permit”.

The Secretary of the College replied to this letter on 25 September, 1971, as follows:

“Irish Universities Act, 1908—Sec. 5 (i)

Statute LXXXVII of University College, Cork.”

“I acknowledge your letter of 14 Deire Fómhair, and reply to the points raised by you in connection with the above Statute as follows:—

(1) The notice regarding the making of the statute which was sent for insertion in Iris Oifigiúil was accompanied by an official order and was addressed to the Controller, Stationery Office, Beggar’s Bush, Dublin.

(2) The legal advice on which the College acted in presenting Statute LXXXVII. to the Houses of the Oireachtas was fully set out in my letter to you of 6 Bealtaine, 1971. We had also communicated with Cléireach na Dála and Cléireach an tSeanaid and had been referred by them to the Houses of the Oireachtas (Laying of Documents) Act, 1966, and to the relevant Standing Order of each House (No. 139 of an Dáil and No. 115 of an Seanad).

(3) It is now noted that, in addition to the foregoing, there are other procedures which require that presentation papers be accompanied by a form signed by the head of the appropriate Government Department.

(4) The position of the Government with regard to statutes enacted by the College is fully recognised”.

On the same date, 25 September 1971 the Secretary of the College wrote to the Librarian of the Oireachtas as follows:

“Irish Universities Act, 1908—Sec. 5(i)

Statute LXXXVII of University College, Cork”

“I have your letters of 14 and 20 Deire Fómhair and would confirm that I have also heard from the Department of Education who refer to a procedure whereby presentation papers are accompanied by a form signed by the appropriate Government Department. I shall be glad to know where a copy of these procedures may be obtained.”

The following reply dated 26 October 1971 was received.

“I am in receipt of your letter of 25 Deireadh Fómhair, 1971 regarding Statute LXXXVII of University College, Cork.

Information in relation to any aspect of the letter sent to you by the Department of Education would be a matter for that Department. A copy of your letter has been forwarded to the Department and it is understood that the Department will reply to you directly in the matter.”

In response the Secretary of the College wrote to the Librarian of the Oireachtas as follows on 17 December 1971:

“Irish Universities Act, 1908—Sec. 5(i)

Statute LXXXVII of University College, Cork.”

“Further to my letter of 7 Nollaig, I wish to inform you that I have now received from the Department of Education the ‘reply’ referred to in your letter of 26 Deire Fómhair. This reply does not furnish the information which I sought from you in my letter of 25 Deire Fómhair. In the circumstances I must ask you to be good enough to let me know whether the information sought is ‘classified’ and, if not, whether you are prepared to furnish it.”

The only reply received, dated 21 December 1971, was again to state that the enquiry should be addressed to the Department of Education.

Statute LXXXVII was according to a letter from the Department of Education of 15 December 1971, forwarded for presentation by that Department to both Houses of the Oireachtas “in accordance with Section 5(i) of the Irish Universities Act, 1908”.

You will I feel appreciate the situation of the College in relation to the placing on the tables of the two Houses of the Oireachtas of its Statutes in both of these instances. As far as the preliminary legal advice which we have received goes we understand that the action both of the officials of the Oireachtas, of the Stationery Office and of the Department of Education, had no statutory justification whatsoever. In no case did we endeavour to “by pass” the Minister for Education. In connection with Statute LXXXVII he was supplied with copies of the Statute at the same time as it was sent to the Clerks of the Dáil and Seanad. He had ample opportunity to consider the Statute, and to decide on his course of action, even if, we are advised, the presentation was legally complete on the delivery by the College of the copies of the Statutes to the Clerks of both Houses of the Oireachtas.

We are very considerably disturbed at the action of the Minister in connection with Statutes LXXXV and LXXXVIII and, as I have stated earlier, are seeking Senior Counsel’s advice as to what remedy at law is available to us either to compel the Minister for Education to lay both these Statutes on the tables of the Houses of the Oireachtas directly they assemble after the current general election or alternatively to compel the Clerks in question to accept the right of University College Cork itself to comply with the Irish Universities Act, 1908 and to complete presentation by delivering to them the Statutes in question. We are advised that such delivery to the Clerks is legally equivalent to laying the documents on the tables of the Houses of the Oireachtas.

19 February, 1973.

(viii)

An Roinn Oideachais,

Baile Átha Cliath, 1.

Cléireach an Roghchoiste,

Seanad Éireann,

Baile Átha Cliath 2.

I am directed by the Minister for Education to refer to your minute of 27 Iúil, 1972 regarding the time interval which elapsed between the date of making by the National University of Ireland and/or its Constituent Colleges, of statutes (referred to in the schedule accompanying your letter) and the date of their presentation by the Department of Education to Seanad Éireann, and generally to point out that statutes are not forwarded to this Department immediately they are made by the University or College concerned.

In the case of those statutes referred to in your minute, the date of receipt of each in this Department is shown on the accompanying schedule, from which it will be seen that the interval between the making of a statute and its receipt here has varied from one day to up to three months. As regards the length of time which elapses between the receipt of a Statute in the Department and its presentation to Seanad Éireann it will be appreciated that having regard to the provisions of Section 5 of the Irish Universities Act, 1908, as adapted, under which action may be taken with a view to the disallowance of a Statute or any part thereof, this Department must take every precaution to ensure as far as practicable that no Statute which is presented to the Houses of the Oireachtas contains anything which might be likely to form a justifiable basis for a petition to disallow the Statute in whole or in part or might render the Statute open to valid criticism on the grounds, for instance, that the provisions of the Statute are contrary to Government policy. The latter is of particular importance in regard to Statutes giving effect to wage and salary increases and places on the Department the onus of examining such Statutes in detail so as to ensure that the increases proposed come within the provisions of the national wage agreements. In general, therefore, every statute submitted to the Department is required to be examined very carefully and in detail before it is forwarded for presentation, such examination sometimes involving correspondence with the originating College and the time required for such examination varies with the complexity of the subject matter or subject matters of the Statute and the other more pressing work devolving upon the Department at the particular time. On the whole, however, this examination is carried out as expeditiously as circumstances permit.

As regards Statute LXXXV and LXXXVIII of University College, Cork, I am to attach a separate memorandum outlining the position in that case.

I am also to express regret at the delay in replying to your minute, which was occasioned by a confluence of unavoidable circumstances.

MICHEÁL Ó hODHRÁIN.

20 Feabhra, 1973.

Schedule enclosed with Department of Education minute dated 20 Feabhra, 1973.

Memorandum relating to Statutes LXXXV and LXXXVIII of University College, Cork.

In January, 1971, the College Authorities submitted Statute LXXXV for presentation to An tOireachtas. This Statute provided for a revision of the existing pension scheme for the College and, also, for the establishment of two lectureships. No question arose in relation to the two new lectureships but examination of the proposed revision of the pension scheme revealed that the Statute would give to members of the superannuation scheme benefits far more generous than those applying in other University institutions and in the public service generally. A summary of the existing superannuation terms and of the new terms according to Statute LXXXV are given in the attached Addendum.

Following some correspondence, officials of the Department met the President and other officers of the College on 2nd June, 1971, when the College representatives explained why the Governing Body thought it necessary to amend the superannuation terms as proposed. Having considered the matter in the light of what was said at that meeting, and of all relevant circumstances, notification was sent to the President of the College on 8th June, 1971, to the effect that the Minister for Education could not put himself in the position of appearing to sponsor, in the case of University College, Cork, superannuation conditions which would be very much more generous than those which apply in the public service generally; and that he would feel constrained, unless the Governing Body on reconsideration decided to withdraw the Statute in its present form, to introduce a motion, after the Statute was presented to both Houses of the Oireachtas, to disallow those parts of the Statute which deal with the amendment of existing pension conditions.

On 23rd June, 1971, the President of the College wrote to say that the Governing Body, at a meeting of the preceding week, had felt that in the light of the Minister’s decision it had no option but to agree to the amendment of the Statute. They had obtained legal advice as to the procedure in this regard and had been informed that once a Statute had been made by the Governing Body it must, at some time, be laid before the Oireachtas even if the Governing Body had by then decided to revoke it. The advice which the Governing Body had received was that they should, to meet the Minister’s requirements, make an amending Statute and arrange to have it laid before An tOireachtas simultaneously with Statute LXXXV. The President suggested that he and other officers of the College should have a further discussion with officials of the Department.

At this discussion, which took place on 16th July, 1971, the College representatives produced a draft of the proposed amending Statute—No. LXXXVIII—which would revoke the amendments (made in Statute LXXXV) to the main superannuation provisions, but would substitute amendments which would still give more generous superannuation terms than apply in the public service generally, but which are provided in the pension scheme of University College, Galway. They are given in summary in the addendum. The Department’s officials repeated to the College representatives that the Minister would not wish to appear to be sponsoring the award of superannuation benefits in the case of University College, Cork, which were more generous than those applying generally in the public service and that, even though the terms now proposed have been applicable for some years past in the case of University College, Galway, it was likely that, if the revised Statute were presented in the form in which it then stood, the Minister should have to introduce a motion to disallow those parts of the Statute which would amend existing superannuation conditions. This was confirmed in a letter of 13th August to the President of the College in which it was pointed out that the fact that the terms of the pension scheme for University College, Galway, have in fact for some years past been more favourable than those applying in other University institutes and in the public service generally could not be regarded as warranting the introduction of similar superannuation terms elsewhere.

On 15th December, 1971, Statute LXXXVIII was formally received in the Department from U.C.C., with a request that both it and LXXXV be laid before both Houses of the Oireachtas. Statute LXXXVIII as now submitted was identical in its terms with the draft which was produced at the meeting on 16th July, 1971. On 17th January, 1971, the Minister’s Secretary wrote to the Secretary of U.C.C. to this effect, and informed the College that nothing had occurred in the meantime to cause the Minister to alter his views and enquiring if the Governing Body of the College wished the necessary steps to be taken to present both Statutes to Dáil and Seanad Éireann notwithstanding the obligation which would be placed on the Minister of introducing a motion to disallow those parts of the Statutes in question to which the Minister was unable to agree. The Governing Body replied on 21st January, 1972 that it wished that both Statutes be presented to the Oireachtas.

*Contained an editing inaccuracy. Corrected statute received 22/7/71.