Wednesday, 25 May 1977
Dáil Eireann Debate
That the Order of the Dáil of 29th March, 1977, in relation to the Friendly Societies (Amendment) Bill, 1976, be hereby discharged, that the consequential Message to the Seanad be hereby cancelled and that consideration of the Seanad amendments be now resumed.
Before proceeding to deal with the matters raised when this Bill was discussed here on the last occasion I should like to say first of all why it is the opinion of the Government that this is an urgent measure which should be brought into law quickly. The Building Societies Act is now law and the supervisory aspects of this Act depend for their exercise on the Registrar of Friendly Societies. This Bill changes very greatly the qualifications necessary for appointment as registrar from a narrow requirement of being a barrister of ten years standing to a much broader one which will allow people with other expertise to be considered for appointment. In order that a full appointment can be made and that the Building Societies Act can take full effect——
Mr. Bruton: During the discussion of this Bill on the last occasion when we were dealing with amendments which had been made in the Seanad Deputy O'Malley drew attention to technical defects in the wording of the text of the Bill then before this House. It should be pointed out that those defects related to the use of the term “1976” in six places in the Bill where, by virtue of the fact that although the Bill had been introduced in 1976 it was being considered in 1977 and the figures “1976” should have been substituted for “1977” in six places in the Bill.
Another change was necessary to the extent that, instead of using the term “Friendly Societies Act, 1936” the correct term which should have been used was “Registry of Friendly Societies Act, 1936”. As is clear from what I have said, these changes were purely technical in nature and did not in any sense affect the substance of the Bill. However, when Deputy O'Malley drew the attention of the House to them, there was a lengthy discussion and it was agreed that the Bill as then before the House did contain these technical defects. The Leas-Cheann Comhairle, at column 520 of the Official Report of 29th March, 1977, volume 298, said:
On the points made by Deputy O'Malley it would seem that the appropriate thing would be to adjourn consideration and send a message to the Seanad in regard to the errors that have been made and send the Bill back to the Seanad for the correction of these errors.
Mr. Bruton: ——that the advice of the Attorney General should be sought before this Bill could be considered for a second time by the Seanad. He wished to have the Attorney General's view as to whether such a second consideration of the Bill in consequence of the message sent to the Seanad by the Dáil would, in fact, be a constitutional procedure.
Mr. Bruton: Would, in fact, be a constitutional procedure. I cannot remember—I am not speaking from a prepared text—what I said. The Cathaoirleach of the Seanad decided that he would wish to have the advice of the Attorney General as to the constitutionality of considering the Bill a second time in the Seanad in consequence of the message which had been sent to the Seanad by the Dáil. That is roughly what I said.
In my opinion the matters adverted to by Deputy O'Malley and mentioned in the message to the Seanad which accompanied the minute of the Department of Industry and Commerce dated 6th May, 1977, are demonstrably of a formal nature—
The alternative course—a purported sending of the Bill by the Dáil to the Seanad for the second time—would, in my opinion, be of extremely doubtful validity in view an the terms of Article 20.1 of the Constitution.
Essentially what we are proposing here is that in view of the advice of the Attorney General we should rescind the message of 29th March, 1977, bearing in mind that it is possible on the advice of the Attorney General that these corrections, being of a formal nature, can be made by the Clerk on the direction of the Ceann Comhairle in the normal way without the matter being reconsidered by the Seanad and that any further consideration of the Bill by the Seanad would be of doubtful constitutional validity. For that reason and also that of the urgency of the Bill to which I referred at the outset of my statement, I am proposing this motion for adoption by the House.
Mr. O'Malley: The appropriate and proper procedure in a matter such as this should have been for the Minister or the Parliamentary Secretary to make available to the Opposition the advice of the Attorney General. First of all, it would be a matter of basic courtesy. That has not been followed. Secondly, if that normal courtesy that should exist is absent in the persons of  the present incumbents of the offices concerned towards this House, then the least those incumbents should do is to read out here the advice of the Attorney General and not selected passages from it.
Mr. O'Malley: I should have been given a copy of it in advance. The Parliamentary Secretary should have read out already the full advice without my having to ask for it because it can be very misleading to pick isolated sentences or paragraphs from it. Would the Parliamentary Secretary read it out now?
In my opinion the matters adverted to by Deputy O'Malley and mentioned in the message to the Seanad which accompanied the minute of the Department of Industry and Commerce dated 6th May, 1977, are demonstrate of a formal nature, and the Clerk of the Dáil, if so directed by the Ceann Comhairle, could make the appropriate corrections, under the terms of Dáil Standing Order 104.
While the Dáil resolved to send a message to the Seanad, it did not purport to send the Bill to the Seanad and consequently the Bill is still in progress in the Dáil (which has not yet finished its consideration of the Seanad's amendments).
The alternative course—a purported sending of the Bill by the Dáil to the Seanad for the second time—would, in my opinion, be of extremely doubtful validity in view of the terms of Article 20.1 of the Constitution. It is, however, not necessary to attempt this course, and I would so advise the Minister for Industry and Commerce.
I am not sufficiently familiar with Parliamentary procedure in this area to offer a view as to the best way of dealing with the Dáil message of 31st March, 1977, to the Seanad. Unless it be thought inconsistent  with the dignity of either House, I would be disposed to suggest that, should the Ceann Comhairle and the Cathaoirleach so agree, it be not acted on by the Seanad, or, should it be thought preferable so to do, the Dáil might agree to withdraw the message. These, however, are questions which the Minister might leave to the Houses of the Oireachtas to decide.
I agree. The Minister can advise the Ceann Comhairle of this opinion. The House, by Resolution, can rescind the earlier message and proceed to complete the consideration of the Bill. The Ceann Comhairle can direct the Clerk of the Dáil to make the corrections.
Mr. O'Malley: If we had this in front of us it would be easier. It is difficult to remember all the details, but there are some significant phrases in it, and it is a little disturbing that they should have been concealed in the first instance. The Attorney General's opinion, apart from the bit he added at the end, is to the effect that consultations should have to be held with the Ceann Comhairle for his agreement to this. I wonder were these consultations held and if the Ceann Comhairle agreed. If that agreement was given why was the fact of these consultations being held secretly with the Minister or the Department not disclosed to the Opposition, as in the words of the Attorney General, this is a matter for the House? I am entitled to inquire from the Chair whether the agreement of the Ceann Comhairle to this was obtained.
An Ceann Comhairle: I can only tell the Deputy that, so far as the motion is concerned, by long-standing practice formal corrections of this nature have been made by the Clerk to Bills. The opinion of the Attorney General merely confirms that practice.
Mr. O'Malley: I was not inquiring from the Chair about the question of corrections to Bills. I was inquiring about whether or not the Ceann Comhairle agreed—it is suggested by the Attorney General that he should be asked—to the bringing back of this Bill from the Seanad.
Mr. O'Malley: The House made an order and the House is entitled to discuss the effort, which I believe is illegal, to upset an order of this House under a guillotine whereby we have to stop this discussion in 16 minutes' time. If everything is so fair and above board why is this brought in here under a guillotine? We are given half an hour and if we have to have any divisions they must come within the half hour. Why is this being done in these circumstances?
Mr. Bruton: The House has been given the full facts of this matter. It is perfectly in order for the Minister to consult the Ceann Comhairle in any matter, as it is for any Deputy to consult the Ceann Comhairle, and the subject matter of those consultations are not necessarily material to be brought before the House. The full facts of the matter are now being put before the House and the House may decide on them.
Mr. O'Malley: In a half hour guillotine. In the course of the Attorney General's opinion, which was read so quickly to us, after I had specifically requested it, he says that the Bill concerned, the Friendly Societies (Amendment) Bill, 1976, is not now with the Dáil. Would the Parliamentary Secretary read that again because I want to get the exact words used. If I had been given the basic courtesy of a copy of this opinion, we would not have this problem now.
Mr. O'Malley: The Attorney General bases his opinion and advice on that. Today's and yesterday's Order Paper, which contains the guillotine motion, should be looked at. Towards the end of yesterday's Order Paper there is a section headed “Dáil Bills with the Seanad”. The first Bill listed under that heading is the Friendly Societies (Amendment) Bill, 1976. In today's Order Paper is the very same thing. How can the Parliamentary Secretary come in here and say that this House is still in possession of this Bill and bring forward in his support the opinion of the Attorney General which is based on the premise that this Bill is still in the Dáil, when in fact the Dáil Order Paper lists it as being a Dáil Bill for the Seanad? If that fundamental premise on which the Attorney General and his officers operated is wrong—and today's Order Paper proves him wrong—the entire opinion must be wrong.
Mr. Bruton: It is within the competence of the House to rescind the message of the 29th March and it is that procedure I am proposing that the House should adopt. I cannot comment on the inclusion of this under the heading mentioned by the Deputy in the Order Paper today. I am proposing that the Message of the 29th March be rescinded. On the basis of the best legal advice available, this will enable us both to consider Seanad amendments and enable the necessary corrections to be made in perfect order by the Clerk at the direction of the Ceann Comhairle. The Bill will then become law with full validity as to the point mentioned by the Deputy. As to the inclusion of this matter in the guillotine motion, the reason for this is the urgency of the Bill, the urgency of having a registrar with the appropriate qualifications appointed, so that the provisions of the Building Societies Act, which is already law and in operation, can be given full effect.
Mr. O'Malley: The Parliamentary Secretary says that he is doing this on the basis of the best legal advice available  to him. That advice was given in the days when the previous Attorney General held office. The previous Attorney General gave advice based on the premise that this Bill was still before the Dáil. I have proved that this Bill is not still before the Dáil. It is listed in the Dáil Order Paper yesterday and today, and indeed since the 29th March, as being a Dáil Bill with the Seanad. If the then Attorney General, who gave his opinion, had known the facts, if he had seen the Dáil Order Paper and had seen that this Bill is not before the Dáil as he incorrectly surmised—presumably because he got incorrect instructions in the matter—he could not have given the advice he has now given. If he could not have given that advice we should not be going through this undemocratic, unparliamentary and illegal procedure that we are now going through under the threat of a guillotine which allows us another ten minutes on this most fundamental constitutional matter.
It is not good enough. If all of this was fair, honest and above board, as the Parliamentary Secretary seeks to have us believe, why would he not do the normal thing that any normal Minister or Parliamentary Secretary would do in these circumstances, that is, go to the Opposition, show them the opinion, admit that a mess had been made of it, apologise and indicate that he wanted the Bill to be passed before the election and ask for co-operation, which I am sure would be forthcoming? Instead of that, when that co-operation would probably be readily forthcoming we have a guillotine. We will not even discuss it. We could not care less whether anyone agrees with it or whether it is right or wrong or whether the Bill is riddled with errors. We could not care less whether the procedure about taking it to the Seanad and taking it back without the Seanad's consent is right or wrong. It does not matter a damn; we will send it through anyway.
This is just arrogance. Parliament no longer matters a damn in this country. It has not mattered for the past four years because the views of  the people and their representatives here are disregarded. This matter is more important than just the Friendly Societies (Amendment) Bill, 1976. This is an unimportant uncontroversial Bill. The only reason it got any notoriety at all is because the Minister for Industry and Commerce and his Parliamentary Secretary made an unholy mess of it. Indeed, there is no precedent for such a series of messes in the last 50-odd years.
Mr. O'Malley: They bring it in here again with, on their own admission, eight errors in it. The Leas-Cheann Comhairle counted the errors and agreed the Bill could not be passed and these formal corrections could not be made as they were not envisaged by Standing Order 104 and the Bill would have to go back to the Seanad to be put in order. Here we have the Dáil Order Paper showing this Bill is with the Seanad. The Seanad Order Paper also shows it is with the Seanad. Yet, because the Government want to call a general election and want to force as much legislation through in the meantime, they bring in a guillotine motion. They do not consult anyone. They give a selective reading of the advice of the Attorney General and they leave out the part——
Mr. O'Malley: The part the Parliamentary Secretary tried to conceal contained a statement by the Attorney General which showed he was clearly under a misapprehension as to one of the fundamental premises on which the whole matter was being considered by him. This Bill is now lawfully before the Seanad and this is the proof of it—the Dáil Order Paper and the Seanad Order Paper—and there is no provision under our Constitution or the Standing Orders of either House that I am aware of whereby a Bill under consideration by the Seanad can be brought back here and considered by the Dáil without an order being made in the other House to that effect when the Bill had been passed by the other House. The Seanad did not sit yesterday. It may be sitting later today but it is not sitting between now and 1.30 p.m. and it has not made the order in regard to the purported legislating that is supposed to go on here now. This is a charade of democracy and a throwing out of all the rules and Standing Orders and safeguards and precedents built up in this House over more than 50 years in order that Parliament and the democratic system would be protected.
This is being done on something that is admittedly not important now, but the fact that it can be done and got away with in relation to this will mean that this Government, if—and God forbid—returned to office in the coming general election, could not be stopped in doing this in relation to something important and controversial. The House should show its disapproval of this kind of surreptitious activity and this effort to conceal the facts. If it is all so clean and above board as we are led to believe, why has the guillotine to be used? We have no answer to that. Why does the Parliamentary Secretary or the Minister himself take responsibility for this anti-democratic activity instead of coming to me and showing me the opinion of the Attorney General, which would be the normal practice? Instead of that they try to force this through under a guillotine motion. Apparently this House has not the power to stop this happening  but, by God, this House will have the power in a month's time to see this kind of carry-on does not happen again.
Mr. Bruton: The fact is the Cathaoirleach of the Seanad declined to take the Bill in consequence of the message sent on 29th March pending the receipt of legal advice. That was his decision. If the legal advice had been that the proper procedure was that the matter be considered again by the Seanad neither I nor the Minister would have had any objection in the wide world to dealing with it in that manner and coming back again here with the Bill. But the situation is that the Cathaoirleach, before considering whether he would allow the Bill to be taken, on his own initiative decided to obtain legal advice and it is in consequence of that legal advice, which indicates that the procedure agreed upon by this House on 29th March would be of doubtful constitutional validity, that the matter is now again before this House. That is what happened. There is no endeavour on our part to do anything irregular or to depart in any way from proper procedure. The situation quite simply is that the procedure now proposed is necessary because of the advice sought and obtained by the Cathaoirleach on his own initiative.
Mr. O'Malley: The advice sought and obtained is based on the premise that this Bill was still with the Dáil. The Attorney General's opinion states that, since the Bill is still with the Dáil, it should not now be sent to the Seanad. The Dáil's Order Paper proves that is not so. The Seanad's Order Paper proves that is not so. If the position were as the Parliamentary Secretary now seeks to suggest, the Cathaoirleach could not have held the Bill on the Seanad Order Paper because it was open to the Seanad to take the Bill, if it wanted to, when it appeared on the Order Paper. What the Parliamentary Secretary says is wrong because that advice is based on the premise that the Bill had never left the Dáil. Since 29th March it is listed on the Order Paper as “Dáil Bills with the Seanad” and the Parliamentary  Secretary cannot therefore rely on an opinion based on a wrong premise. The wrong premise is due, of course, to the instructions given to the Attorney General, not by his own staff but from the Minister for Industry and Commerce. Had the Attorney General been told that the Bill was not with the Dáil but was listed on the Dáil Order Paper as a Dáil Bill with the Seanad obviously he could not have given the advice he did, because all the rest of that advice impinges on the statement that the Bill had never left the Dáil.
If the whole thing is so pure and innocent as the Parliamentary Secretary alleges I repeat my question: why did he not come, in accordance with normal practice in a matter like this, when a Minister or a Parliamentary Secretary makes a mistake, and say “Look, we are sorry but there is a mess here and here is a copy of the opinion of the Attorney General and would you agree we will fix all this up with the minimum of fuss and so on because we want to bring the Bill into operation” and the answer would inevitably have been “Yes”. But that was not done. The whole thing is done  surreptitiously. This Bill is slid into a three-page guillotine motion designed to bring this House to an end. It is a circumstance which gives rise, and I think properly, to the deepest suspicions. I want to warn the Chair now that, if this procedure is created here in relation to a matter of little importance, there is nothing to stop it being used in a matter of major importance if that Government are returned to office after the general election.
An Ceann Comhairle: In accordance with the order made yesterday by the Dáil I am putting the question that the order of the Dáil of 29th March, 1977, is hereby discharged and the consequential message to the Seanad is hereby cancelled and that all amendments made by the Seanad and not disposed of by the Dáil are hereby made.
Burke, Joan T.
Clinton, Mark A.
Conlan, John F.
Cooney, Patrick M.
Dockrell, Henry P.
Donegan, Patrick S.
Dunne, Thomas. O'Leary, Michael.
O'Sullivan, John L.
Reynolds, Patrick J.
Ryan, John J.
Esmonde, John G.
Fitzpatrick, Tom (Cavan).
Flanagan, Oliver J.
Harte, Patrick D.
Hogan O'Higgins, Brigid.
Jones, Denis F.
Kyne, Thomas A.
McDonald, Charles B.
Murphy, Michael P.
O'Donnell, Tom. Staunton, Myles.
Brady, Philip A.
Burke, Raphael P.
de Valera, Vivion.
Fitzpatrick, Tom (Dublin Central).
|Gogan, Richard P.
Healy, Augustine A.
Kitt, Michael P.
Lalor, Patrick J.
Wilson, John P.
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