Tuesday, 31 October 1933
Seanad Éireann Debate
Mr. Douglas: I intimated that I would probably put down an amendment on the Report Stage to this Bill but I came to the conclusion that it would be inconsistent to do so as my own judgment is that the Bill as it stands now will make it possible, should the Executive Council consider it desirable, to recommend the Governor-General to withhold assent to a Bill. Having carefully read the Bill, and taking into consideration what seems to be the general constitutional practice, I think the provision that the Bill shall be sent for assent automatically involves the right to withhold assent. There is no question whatever that that assent or withholding of assent can only be given, no matter which it is, on the advice of the Executive Council. As I explained previously, I thought there might conceivably be circumstances in which, in the interests of the country, the Executive Council might wish to advise the withholding of assent, and it was in order to make that clear that I thought I would put down an amendment. Having carefully considered the matter and having reached that conclusion, I did not think it would be consistent to do so. I do not know whether the Minister wishes to make any statement as to the views of the Government.
Minister for Lands and Fisheries (Mr. Connolly): In view of the promise I gave to Senator Douglas when he raised this point on the Second Stage, I should like to read out the opinion which has been formulated after consideration by the Executive Council. On the Committee Stage of this Bill, Senator Douglas asked whether, in the Government's opinion, Article 41, as it will read when this Bill becomes law, confers upon the Executive Council the right to advise the Governor-General to withhold his assent to a Bill which has passed both Houses of the Oireachtas. The Executive Council have given careful consideration to this point, and I now wish to inform the House that the view taken by the Executive Council is that Article 41 in its amended form will not confer upon the Executive Council the right to advise the Governor-General to withhold his assent to any Bill which has passed both Houses of the Oireachtas. When the present Bill becomes law, Article 41 will provide simply that the Executive Council shall present Bills passed by both Houses of the Oireachtas to the representative of the Crown for the signification by him, in the King's name, of the King's assent. It is clear, therefore, that the Bill must be presented for assent. It would appear self-contradictory for the Executive Council to present a Bill for assent and, at the same time, advise the Governor-General not to assent. The Executive Council take the view that it should not be within the competence of an Executive Council to frustrate the will of both Houses of Parliament by advising the Governor-General not to assent to a Bill which had passed both Houses.
Senator Douglas said, in his speech on the Second Stage, that he could conceive circumstances in which it might be useful if the Executive Council had the power to advise the Governor-General to withhold his assent to a Bill. He instanced the case where a Bill had passed both Houses, and a general election took place before the formal assent had been given. It is not felt that any difficulty would arise in the circumstances outlined by Senator Douglas  for the following reasons. It is the duty of the Executive Council, so soon as a Bill has passed both Houses, to present it for assent, and that duty would still remain even if a dissolution intervened after the passage of such a Bill. As Senators are aware, an Executive Council in office continues to function until its successor is elected. It would, consequently, be the duty of an Executive Council to present any Bill which had passed both Houses immediately before dissolution took place to the Governor-General for assent before the new Dáil reassembled and another Executive Council took office.
With regard to the point that, if it was not within the power of an Executive Council to advise the Governor-General to withhold assent, a new Government might find itself in the position of having a law which was against their policy, I agree that such a position is possible, but I should point out that a new Government might regard other Bills passed during the period of office of their predecessors as being equally undesirable. I have carefully examined the cases which might give rise to difficulty in this regard, and the only one I can find would be a case in which the Dáil accepted an amendment from the Seanad against the wishes of a Government in office. Such acceptance by the Dáil would automatically put the measure in question in the position of being a measure passed by both Houses, and would also amount to a defeat of the Government, and possibly involve a General Election, or, at any rate, the creation of a new Government. You would then have a position that a Bill would have been passed by both Houses, and the incoming Government would have to present it to the Governor-General for assent, but it must be assumed that, in this state of facts, the Party in the House which would form the new Government would have been in favour of the amendment which caused the defeat of their predecessors, and, consequently, the Bill in its amended form would be acceptable to them.
In all the circumstances the Government is satisfied that, when both  Houses of the Oireachtas have agreed on any measure, such measure should be presented to the Governor-General for assent, and that there should not be any right in the Executive Council to prevent the will of Parliament so expressed from being effective.
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