Report of Committee on Procedure and Privileges on the Ruling of the Cathaoirleach with regard to the Land Purchase (Guarantee Fund) Bill, 1935.
Tuesday, 14 January 1936
Seanad Éireann Debate
Mr. Brown: I move that the Report be adopted. The first question involved in the Report is the most important one, and is also a rather complicated one. Perhaps I may be allowed to state, very shortly, the circumstances under which the question arose and the reasons for the findings of the Committee. I am taking it directly from the Report of the Land Purchase (Guarantee Fund) Bill, which was certified by the Ceann Comhairle as a Money Bill. It was received from the Dáil late on Wednesday night, 11th December, and it appeared on our Order Paper, on the 12th, for Second Stage. There also appeared on the Order Paper a motion in the name of Senator Robinson to enable the remaining stages of the Bill to be taken on that date.
Before the House sat on Thursday, it came to the knowledge of the Cathaoirleach—the mode being stated in the report—that steps were being taken by members of the other House to request the reference of the question whether the Bill was, or was not, a Money Bill, to the Committee of Privileges which, under Article 35 of the Constitution, came to be constituted for that purpose.
In these circumstances the Cathaoirleach was faced with a very difficult question. There was no Standing Order of our own which applied to this particular case. We had always been in the habit of treating, as far as our procedure was concerned, a Money Bill in the same way as a Bill that was not of the nature of a Money Bill. The only section that applied to the procedure at that time was the one which applied to Bills which were not Money Bills. The Cathaoirleach was, therefore,  bound, there being no Standing Order of our own on the matter, by our Order 39 which provides: “In all matters of order which may arise and are not provided for in these Standing Orders, the Cathaoirleach shall rule as to him seems right, having regard to such precedents as may have been established, and to the circumstances of the case.” But a case of the kind had never arisen before and, therefore, there were no precedents, and the Cathaoirleach had to do what he deemed to be right in the circumstances. The circumstances with which he had to deal are set out in the Report and will be found in paragraph 10.
Therefore, he could allow the Second Stage to be taken and disallow the motion for the other stages of the Bill, or (c) he could take the decision which he did, in fact, take, and rule that the Second Stage could not be taken until the three days had expired within which a request for the Committee of Privileges could be demanded by members of the Dáil.
I may mention that it is a curious fact that, under the Article of the Constitution dealing with this question of reference as to whether a Bill is a Money Bill or not, there are seven days allowed for a request for that Committee of Privileges, but under the Standing Orders of the other House only three days are allowed to members of that House in which to demand such a committee. It is further provided in the Constitution that if a Money Bill is returned by the Seanad to the Dáil within the seven days, the power to demand a Committee of Privileges is at an end as soon as the Bill has been returned. Now it is easy to see how, if the Cathaoirleach had made no ruling, this position could have arisen. If the Cathaoirleach had adopted the first alternative,  that is, to let the Order Paper stand as it was, and if both the motion for the Second Reading and the motion in the name of Senator Robinson had been taken, the Seanad might have passed the Second Reading of the Bill and also the motion in the name of Senator Robinson. In that case this House would have deprived the members of the other House of the right which they had to refer this to the Committee of Privileges under Article 35, and so the Cathaoirleach rejected the first alternative. If he adopted the second alternative and allowed the Second Stage only to go on, disallowing the motion of Senator Robinson, the decision of the Seanad on the Second Reading might very seriously have prejudiced the decision of the Committee of Privileges under Article 35 of the Constitution for reasons which are set out at length, and which seem to be conclusive, in paragraph 12 of the Report. The Cathaoirleach, therefore, rejected the second alternative also, and adopted the third one. He ruled that the Second Stage of the Bill could not be taken until the expiration of the three days and allowed the members of the Dáil, under their own Standing Orders, to require a reference to the Committee of Privileges. Now, that ruling having been made and carried into effect, it was questioned under our own Standing Orders in the ordinary way and duly referred to our own Committee of Privileges. It came before them on the 18th December. There were eight members present, including the Cathaoirleach, one member being indisposed at the time. The question was fully discussed, and the majority, as appears from the schedule to the Report, was 5 to 2. The opinion of the majority of the Committee is stated in paragraph 14 of the Report:
We are, accordingly, of the opinion for the reasons stated: (1) that the subject matter of the Cathaoirleach's ruling was a matter of order not provided for in the Standing Orders, and that Standing Order 39 therefore applied to it; (2) that, the case being unique,  no precedents had been established in regard to it, and that the Cathaoirleach, in accordance with Standing Order 39, had to have regard solely to the circumstances of the case; (3) that, in the circumstances, his ruling was justified.
Mr. Milroy: Arising out of this Report, there is one matter that I wish to draw attention to. It is rather unusual, and therefore I claim the indulgence and support of the House in bringing it forward. On the day that that ruling was arrived at the President of the Executive Council speaking in the Dáil that evening on Constitution (Amendment No. 24) Bill made this reference:
“Even to-day you can see the Party attitude that is being taken up already—the Chairman of that Seanad anticipating an action of one of the Parties here because of a report in the newspapers, and preventing business which was on the Order Paper from being transacted. Then we are supposed to believe that the Seanad is not a Party Seanad——”
I pass over the extremely bad taste of such references in the Dáil to the ruling of the Chair in this House. There is a more serious aspect of that statement which cannot be allowed to pass without comment. The President of the Executive Council impugns the impartiality of our Chairman and the bona-fides of members of this House without a shadow of justification, and, so far as one can judge, merely in order to try to make a partisan debating point in the Dáil. There is also a definite imputation in his statement that there was collusion between the Chair and a Party in this House in arriving at the ruling of the Chair. I consider it imperatively necessary that such a statement, and the imputations it carries, should be at the first appropriate opportunity categorically denied. As to the suggestion of collusion, the very opposite is the fact. So far as the members of the Seanad for whom I speak are concerned, I may say that we met at half-past two that day——
Mr. Milroy: In order to accommodate the tender susceptibilities of Senator Lynch, I will try to refrain from the actual reading. I may say that so far as the Senators for whom I speak here are concerned, we met at half-past two on that day. I presided at the meeting. We decided to act on the assumption at that meeting that all stages of the Bill would be taken that afternoon. We drew up recommendations to be considered on the appropriate stage of the Bill. It was only when one of our members arrived at the office of the Clerk of the Seanad at five minutes to three  o'clock to hand in the recommendations that we learned what the decision of the Cathaoirleach was going to be. I may say when we heard it we felt somewhat disconcerted at the decision. I think what I have said should dissipate any credence that might be given to the statement of the President of the Executive Council that there was either collusion or Party influence brought to bear in order to bring about the ruling of the Chair.
As to the ruling of the Chair itself. I think all members will now agree that it was a wise ruling to have made. It is one that reflects credit upon the judgment of the Cathaoirleach, as well as one which definitely preserved at a critical moment an important right guaranteed by the Constitution to the other House in Parliamentary procedure.
It is regrettable to have to make these comments on a statement of the head of the Government, but when that statement reflects so seriously, as it does, on the good faith of members of this House, and especially on the probity of the Cathaoirleach, who has, during his tenure of office, preserved an attitude of strict impartiality in such matters, it is essential a protest should be entered on the records of this House and an emphatic denial given to such a statement and its imputations.
Cathaoirleach: It is not in order for a member of one House of the Oireachtas to make personal references to a member of the other House; but I did not stop Senator Milroy, as I thought it only equitable that he should be allowed to reply to the President in so far as the remarks of the latter may have made an unfair imputation on the Party to which the Senator belongs. So far as the charges against the occupant of the Chair are concerned, I propose, of course, to ignore them. I shall not allow any further reference to this matter.
Mr. Comyn: I am a member of the Committee of Privileges to which the ruling of the Chair was referred, and I was one of those in the minority who dissented from that report. I would like to state the reasons why I  dissented. In the first place, I consider that the only channel of communication between the Dáil and the Seanad is the recognised legal channel through the Clerk of the Dáil and the Clerk of the Seanad. When the Cathaoirleach made a ruling refusing to take up this Bill, which was, I think, first on the Order Paper of the day, he gave as his reasons that there were reports in the public Press to the effect that certain members of the Dáil, who had not then reached the legal number, were going to challenge the ruling of the Chairman of the Dáil that the Bill was a Money Bill.
I say, with great respect, that the business of Parliament cannot be carried on with dignity or legally, if the statements made in the public Press from time to time, even though they may be unanimous—they rarely are unanimous—are to be taken as a ground for the ruling of the Chair either in the Dáil or the Seanad. We are governed by certain rules of order; we have a procedure clearly defined; we have officials regularly appointed and it is through these officials that all communications from the Dáil to the Seanad or the Seanad to the Dáil should go. If you adopt any other method you will have confusion and want of respect for each or both Houses of Parliament.
This was the first occasion on which a ruling of the Chair was challenged. I think that the judgment of the Chair on that occasion was wrong. I signed a requisition to challenge that judgment. I still think that the judgment of the Chair was wrong. Of course I make no imputation whatever on the honour of the Chair. Why should I? At the same time, each member of the Seanad has a right to his own opinion, to the exercise of his own judgment and to the expression of his own judgment. I think my friend Senator Brown has made only a very poor defence for the ruling of the majority.
Mr. Comyn: The rules of this House, as drawn up by the very eminent man who supervised these rules, are sufficient for all the purposes of this House. If the rules had been complied with, very many difficulties would have been avoided. The first item on the Order Paper that day was this Bill which was certified by the Ceann Comhairle to be a Money Bill. We might very well have taken that measure into consideration and passed the Second Reading. Item 2 on the Order Paper was that all stages of the Bill were to be taken on the same day. All stages could not have been taken if there was objection by any single member of the Seanad.
Mr. Comyn: I will not challenge that ruling at the present moment. All I say is that when Item 2 came up, that was the time for members of the Seanad to say “Now, the question as to whether this is a Money Bill or not is about to be challenged and the further Stages of this measure ought not to be taken at the present time”, and that would be a sufficient reason for postponing the further Stages until such time as the requisition had been signed by the members of the Dáil. My last objection is this, that the proceedings of this House should not be regulated by the whisperings of political gossipers or by statements in the Press, whether these statements are unanimous or not. I again say I make no imputation whatever on the honour of the Chair, but I differed from his judgment then and I differ from his judgment now.
Mr. O'Neill: I beg to move an amendment to Senator Brown's motion that this Report be marked “Read.” I listened, as I always do, with great interest and with great respect to Senator Brown, and I consider it would be impertinent for me to find fault in any way with anything he has said. But I am going to refer to this Report from a very different angle to that from which it was referred to by Senator Brown. The reason I am doing so has been drawn more or less from me by the remark made by Senator Milroy when he trotted out that old wheeze of impartiality. What do we find in this Report? We find that the Cathaoirleach whose ruling was under consideration by the Committee, actually took the chair, took part in the proceedings and signed the Report dealing with the findings on his own action. Secondly, we find in the  Report that Senators on the Committee had signed the requisition by which, to my mind, they, to a certain extent, prejudged the issue on which they afterwards voted; and thirdly, we find Senator Douglas with his usual insight coming to the rescue and moving a motion of dispensation which was agreed to by the Committee.
With the greatest respect to the Committee, I say that they committed a definite error of judgment in passing that motion. That is my opinion, because the question for consideration was one about which there should have been no bargaining whatever. I say bargaining because I find it stated in the Report that if the Cathaoirleach would do one thing, the other members of the Committee would do another. I think that that was a clear case of bargaining. It was a question above all for Senators to determine how they should act in accordance with their own interests, and according to their sense of public duty and public decency. It should not have been necessary for Senator Douglas to come along and propose a motion directing them what to do. Speaking bluntly, I consider it was an insult to the Cathaoirleach, it was an insult to the Senators who signed the requisition, and above all, it was an insult to the intelligence of the Committee themselves that they should pass such a motion. It would be of great interest to the House to have from Senator Brown, after his long and distinguished career at the Bar, a statement as to whether he ever read or whether he ever knew or ever heard of a case in which the defendant presided at his own, trial, took part in the proceedings and signed a verdict as foreman of the jury—a verdict giving the findings on his own action? On the other hand, I ask the Senator did he ever know of a case where there were three plaintiffs acting on the jury? The whole thing appears to me a beautiful comedy. I am sure Senator Brown will agree with me in that. And might I compliment the Cathaoirleach on the attitude he took up at one stage? The Report tells us—I think it is paragraph 4—that he was prepared to step down from the  Chair, not to take part in the proceedings, give the reason for his ruling and then retire. I compliment the Cathaoirleach on that action. It was a dignified and proper action for him to take up in the first instance. It is a great pity that the Cathaoirleach did not see the light on previous occasions, particularly in the case of the Blueshirts inquiry. I am greatly afraid that our bump of humour is not very pronounced. If we take this thing seriously——
Mr. O'Neill: Well, I am afraid our sense of humour is not very pronounced. I have not the legal knowledge of my old friend Senator Brown, but I am afraid that this Report is bristling over with illegalities, and in that case I consider that the most charitable thing to do with it is to mark it “read.”
Cathaoirleach: I am afraid that Senator O'Neill's way of dealing with the Report is not in accordance with Parliamentary procedure. It is, of course, quite in order, after the manner of a board of guardians, that it should be marked “read.” The Senator should have moved an amendment that the report be not adopted. I take it that that is what the Senator means——
Mr. Lynch: As one of those who took part in the proceedings of the Committee of Privileges, I should like to say a few words. In that Committee I happened to be in a minority. I have heard Senator Comyn give his reasons, and his reasons were my reasons at the time when the decision was come to by you, Sir, on this question. I think it is hardly necessary for me to say that I do not agree with the ruling you gave on this matter. I hope it is hardly necessary for me to say, with all deference and respect, that I am satisfied you are quite incapable of doing anything that was not honourable and just according to your own opinion. But, having said that, I hope an opportunity will be extended to me of criticising that opinion and showing with all due deference, why I disagree with it. One of the Senators who has spoken has appealed to Senator Brown as to his experience as a barrister—his experience in courts. The Senator has told my friend Senator Comyn that he is anxious to reply. I would like to hear from him when he is replying if he has ever in the course of his experience as a barrister heard of a judge adjourning the proceedings of a court because he read something in one or two or three newspapers that morning, without the matter having been brought to his notice by somebody who is interested as a litigant before him.
With all due deference, that would strike me to be more in point than the reference to some other matters which we have heard discussed. That is a matter that struck me at the time of the original ruling by you, Sir, upon this question, declining to have the matter discussed on the 12th December when it was on the Order Paper. It struck me as being unfortunate that the Chairman should have given as his reason, not that he got any official communication that steps were about to be taken, or that information was conveyed in the usual or appropriate channel, but that he read it in all the morning papers—I think that was his expression. I thought at the time, and  do still, that that was a very unfortunate matter and that it should have been the basis of your ruling. I thought it very unfortunate and I ventured to differ, with all respect, from that ruling at the time. I adhered to that opinion when I was on the Committee and I adhere to it still.
There is another aspect of this ruling which strikes me as worthy of consideration. It is stated that if that ruling were not made by you, Sir, it was quite possible that all the stages of the Bill would have been taken that day and that that would have been very unfortunate having regard to what we now know was going on with reference to the Committee of Privileges in the Dáil. What occurs to me is that that matter could not have been gone through in the easy way it is suggested it might have gone through, that is, taking all the stages in the Seanad on that occasion, except the House was very anxious to dispose of it and to create difficulties in the way of the other House. If any intimation came from the Chair after the Second Stage of the Bill was dealt with, or after Senator Robinson moved his motion of which he had given notice, or if the attention of the House was called to the situation, I am sure that the good sense of the House would deal with it as it commended itself to them.
I suggest, with all due deference, that it is rather a reflection on the intelligence of the House to suggest that they would not have dealt with it in a way that would be worthy of the Chamber itself. I thought so at the time; I think so still; and that is the reason why I was one of the dissenting members from this majority report of the Committee. I thought it necessary, or proper at all events, to state that to the House and again repeat that I have always thought that you, Sir, might differ in opinion from people whom you considered to be holding opinions different from your own perfectly honestly and truly. These are the reasons why I am against this and was one of the dissenting members on this Committee, and I am of the same opinion still as I was then.
Mr. O'Farrell: As I am a member of the Committee on Procedure and Privileges and other members have spoken as to why they did take a certain course, I think it is only fair that I should state very briefly why I took the course I did. I say at once that as a member of the Committee on Procedure and Privileges I have never been asked and, if asked, I would have refused to accept Party direction or dictation in interpreting the Orders of this House. I look upon myself as acting in a judicial capacity when acting as a member of that Committee and I only wish every member of that Committee acted in the same spirit. I think that we should look upon ourselves as interpreting the Orders and establishing the rights of this House irrespective of the Party to which we belong. For that reason, I did think it unfortunate that three members of that body should see fit to send a requisition challenging the ruling of the Chairman, seeing that they themselves would be three members of a jury of eight who were going to try the Cathaoirleach later.
Mr. Comyn: I must protest against the suggestion that there was any trial of the Cathaoirleach. It was the judgment of the Cathaoirleach that was in question, and the wisest judge that ever was might sometimes be wrong.
Mr. O'Farrell: I only mention the matter because Senator O'Neill, in his humorous homily to the House, has commented on the fact that the Cathaoirleach was also Chairman of the Committee on Procedure and Privileges. He was there not because of any action of his own, but because by the Standing Orders he was a member of that Committee.
Mr. O'Farrell: The Standing Order did not provide who should take or who should vacate the Chair in such circumstances. That particular Standing Order provided that it is his ruling that would be challenged.
Mr. O'Farrell: I quite agree. I think Senator Comyn adopted the proper attitude in staying there and that the Cathaoirleach adopted the proper attitude. I only say that it was rather unfortunate that the three members concerned should feel it was necessary for them to put themselves down definitely as challengers of a decision, seeing that they knew that they would be the jurors who would try the matter. When we came to discuss this the whole point at issue was that the Cathaoirleach had made his ruling because of a statement which he had seen in the Press and not because of any official intimation which had reached him. Senator Lynch, an eminent member of the Bar, to-day asked Senator Brown if he ever heard of a judge taking notice of a newspaper report for the purpose of adjourning or otherwise influencing a case. He makes the statement notwithstanding the fact that I drew his attention during the proceedings of this Committee to the fact that a judge of the High Court did actually take notice of a Press report in regard to an action arising out of the very Bill under discussion. During the hearing of the Guarantee Fund case counsel for the Cork and Louth County Councils drew the attention of the judge to the fact that a particular statement had appeared that day to the effect——
Mr. Lynch: Pardon me. The Senator is in error. What I said was, if Senator Brown could cite an instance where a judge did this on his own initiative and not at the instance of one of the parties. According to himself, in the particular instance Senator O'Farrell is referring to, the attention of the Court was called to it by counsel for one of the parties.
Mr. O'Farrell: He did not say on his own initiative. In any case, it is a distinction without a difference. I accept it that the Senator meant that. The fact remains that counsel did, on the strength of a Press report, ask the judge to take a certain course which the judge did take. The judge said that he was going to put the case on the list for this term as a result of the information which counsel for the plaintiff placed before him on the strength of a Press report. If that was good enough for a judge of the High Court, it is good enough for the Cathaoirleach of this House.
I also pointed out at the Committee an instance that might arise. Leinster House was on fire and the fire was approaching this Chamber; the Cathaoirleach knew of it, but the Captain of the Guard had not conveyed him official intimation of the fact, and, consequently, he was not to warn the members of the House and we were roasted up because he did not get official intimation. Members of the Bar and lawyers of all kind balance on the points of pins and they juggle around with legal technicalities. I approach these questions from the viewpoint of a man of average intelligence, of the average man in the street who uses what is known as commonsense, but which in fact is very uncommon amongst people who should have a reasonable amount of it. The main fact that remained was that the members of the other House have certain rights and that unless the Cathaoirleach did what he did they were going to be deprived of these rights. This House had the right, by a motion before it, to pass this Bill through all its stages within one hour and to send it back to the other House, and the petition of right to which the members of the other House are entitled would therefore be satisfied. I think it was the duty of the Cathaoirleach to this House, whether he had official information at his disposal or not, once he knew the information he had got, officially or otherwise, was correct, to preserve to the members of the other House the rights which the  Constitution preserved to them. Somebody said that if one member stood up and objected the other stages of the Bill could not be taken.
Mr. Comyn: I corrected that and I said that if item No. 2 on the Order Paper came up and was discussed the good sense of this House would see that an adjournment took place in order to have it considered.
Mr. O'Farrell: I made no such statement at all. I want to continue regardless of this interruption from the Bar. It should not be made the personal responsibility of an individual member of this House to preserve to the members of the other House the rights which the Constitution confers on them. If there is any responsibility placed on any one individual in that case, it should be placed on the Cathaoirleach. Moreover, if, for Party expediency, the majority of the House decided, as I believe it could have decided, to deprive members of the other House of that right, it was the duty of the Cathaoirleach, in his capacity as Cathaoirleach, to step in and to see that that right was not taken away.
We are told by the people who say that no notice should be taken of newspaper reports that after all the Cathaoirleach, after the Second Stage had been taken, might have mentioned the newspaper report and that if he did it would appeal to the good sense of the House and not Party considerations.
Mr. O'Farrell: I must have very defective hearing. If I misinterpreted the Senator I apologise, but I understood him to say that if the Cathaoirleach had made a certain statement after the Second Reading was taken he believed the good sense of the House would prevail and would hold up the Bill. How could he have made the statement except on the strength of a newspaper report? What is the use of quibbling over matters of that kind? I had no hesitation whatever, and I wanted no promptings from Senator Douglas or anybody else, as to the line I was prepared to take. I take the line I consider right in the interests of justice and equity and in the interests of the dignity of this House for the few weeks that may remain to it. That is the line I have taken in the past and the line I shall take up to the very last hour of the existence of this Seanad. I do think it deplorable that when matters of this kind come up and when a vote is taken, although they are matters purely of order and of judgment and of jurisdiction, you too often find that the vote is on Party lines and that you find members of special committees who are supposed to act in a juridical capacity selected on Party lines in the hope that they will arrive at certain decisions.
I am not standing up to apologise for the decision I arrived at—it was, in my opinion, the only sane and intelligent decision—but merely to state for purposes of record the reasons why I arrived at it. I have to say that at that Committee I heard no statement that would influence the simplest juryman in the world to arrive at a contrary decision, and I do not think that any speech made here to-day by either of the eminent counsel who have spoken would influence a single member of this House to come to any  decision other than that which was arrived at by the overwhelming majority of the Committee.
Mr. Quirke: As one who had nothing whatever to do with the Committee on Procedure and Privileges and is not in the least concerned as to whether or not a few new Standing Orders are inserted, I might perhaps point out what appears to me to border on the ridiculous in this item under the heading of Senator Brown's motion. Senator Milroy drew our attention to the fact that he was the leader of some Party on the other side of the House. He has been the leader of several Parties to my own knowledge, but, in any case, it is set out in the first paragraph that:
“Whenever the Cathaoirleach has been informed in writing by the leader of any Group or Party in the Seanad that a requisition for a Committee of Privileges under Article 35 of the Constitution is in process of being signed by members of either House of the Oireachtas...”
It appears to me that if this motion were to be carried anybody might stand up and say: “I am the leader of a Party and therefore I demand this privilege.” Assuming this House were to continue as a Seanad for the next 25 years, which it does not look very like doing, surely we ought to take the necessary steps to prevent people accusing us after our death of doing something ridiculous in our declining days. I suggest that if the House is to insist on inserting this new Standing Order, some figures should be given; that there should be a provision that the application should be signed by a certain number of members of the Oireachtas; and that any man, before he could call himself the leader of any Party, should be able to prove to the satisfaction of the House that he had somebody in addition to himself to call his Party.
Mr. Johnson: The Report concludes with a recommendation regarding the  Standing Order and the motion is that the Report be adopted. It would seem to me that if there is an affirmative answer given to Senator Brown's motion, it necessarily follows that approval has been given to this new Standing Order.
Mr. Johnson: My general attitude towards this is that I want to approve that part of the opinions of this Committee contained in paragraph 14, but to dissent from the form of this new Standing Order. I feel that if I were to vote for the adoption of this Report, I should be bound to support the new Standing Order in the form in which it is recommended.
Mr. Fitzgerald: On the occasion of your judgment, I think you were guilty of an error. I may say that the general consensus of opinion at that time amongst members of the House was that you were guilty of an error of judgment. I am of opinion that the Standing Orders of this House, read in conjunction with Article 35 of the Constitution, laid down very definite binding rules and that within those rules it was possible for this Chamber to bring about what it did in fact bring about on that occasion. There was a Money Bill listed on the Order Paper for discussion. Your ruling decided that that Bill would not be discussed in view of anticipatory action, and the Committee of Procedure and Privileges have upheld your ruling. I look upon that ruling as establishing a very dangerous precedent because the matter could have been dealt with very definitely under Standing Orders. Under Standing Orders power was given to members of the other House to take certain action. The members of this House had also power under their Standing Orders to take certain action. I put this point to you, that if, under Standing Orders dealing with this issue, you were not able to get two-fifths of the members of the Seanad to have this matter referred to the Committee of Procedure and Privileges, what hope would you have of defeating the Bill or passing a recommendation to it or, if it were not a Money Bill, passing an amendment to it? If that step were taken, on the other hand, you would secure exactly the same result you did secure through your unprecedented action as Cathaoirleach. Even if you could not get two-fifths of the members of the  House, at least you could have sought to obtain a majority of the members of the House, not less than 30 members being present, and as you were able to carry certain recommendations, you could have brought forward a motion to have the question whether the Bill was a Money Bill or not referred to the Committee of Procedure and Privileges.
Mr. Fitzgerald: The House on its own initiative could have taken certain action either by signing a requisition or bringing forward a motion to have this matter referred to a Special Committee to be set up. The same Article of the Constitution governs the procedure of this House as it governed the procedure of the other House, and two-fifths of its members could have signed a requisition and served it on the Cathaoirleach demanding that this issue be put to a Special Committee. Am I quite correct?
Cathaoirleach: Really I do not think it bears very closely on the question at issue. I think to a certain extent this House would have power to ask for a Committee of Privileges but in the meantime the whole question would have been decided.
The Chairman of Dáil Eireann shall certify any Bill which in his opinion is a Money Bill to be a Money Bill and such certificate shall be final and conclusive unless the question whether the Bill is or is not a Money Bill is referred to a Committee of Privileges under the subsequent provisions of this Article
If before whichever of the following events shall first occur, that is to say the expiration of seven days from the day on which a Bill certified by the Chairman of Dáil Eireann to be a Money Bill is sent by Dáil Eireann to Seanad Eireann for its recommendations under Article 38 of this Constitution or the return of such Bill by Seanad Eireann to Dáil Eireann under the said Article 38:—
Alternatively, some member could have formally moved that the matter be referred to a Committee of Privileges, and if there were not less than thirty members present, the majority vote might so dispose of it. In my humble judgment, I think the matter could have been resolved that way. If you had any hope at all of passing a recommendation, if it were a Money Bill, or passing an amendment, if it were not a Money Bill, surely you would have sufficient power, in commanding a majority of votes in this House, to have this method adopted rather than the unprecedented action taken by the Cathaoirleach in his ruling.
Mr. Douglas: I did not intend to intervene in this discussion because the matter was discussed in Committee, and I agree with the Report of the Committee, but the last speaker has quite obviously missed entirely the purport and the object of the Report. He seems to think that the Cathaoirleach should not give a ruling on the circumstances as they appear to him because a certain number of Senators could have taken  action which would have made that ruling ineffective. The position was this. The night previously—I think somewhere about 9.30 or 10 o'clock— the Dáil passed the Bill. I think most Senators had no knowledge that it had passed the Dáil until they saw their papers or saw it on the Order Paper. Senator Fitzgerald apparently suggests that the Cathaoirleach should have conveyed to certain Senators that if they could get two-fifths of the members of this House to make a requisition to have the Bill referred to a Committee of Privileges, there would have been no necessity for his ruling. I agree that if they had done so the Cathaoirleach would not have had to make a ruling, but the Cathaoirleach could have had no possible knowledge of that matter. Senator Milroy has stated that there was no communication with any member of his Party, and I want to say that there was no discussion with the group to which I belong. I really believe no member of the House had any knowledge of the exact ruling the Cathaoirleach was going to make until he came here. I think the remarks of Senator Fitzgerald are based on an entirely wrong conception. This Committee had not to consider what might have been done in certain circumstances. They had to consider the ruling of the Cathaoirleach in given circumstances, and in circumstances where he had knowledge that action was being taken by a certain number in the Dáil, when he had no knowledge of any action by members of this House. It was his duty to see that the privileges of members of the Oireachtas should be granted to Senators in any action that was taken. He gave the best ruling he could in the circumstances, and I think it was pretty much the only thing he could have done. There seems to be an assumption on the part of Senator Comyn, and to some extent on the part of Senator Lynch, that the only method by which the Chairman could have any knowledge whatever of what was happening in the Dáil or amongst members should be by means of communication from the Clerk of one House to the Clerk  of the other. I respectfully suggest that that was impossible under the circumstances, and that it would be highly undesirable and improper for the Clerk in case action was taken by one portion of either House to send a message that a certain section—it might be two-fifths—when it was clear he could have no knowledge of it. The Cathaoirleach would have to deal with a matter which could only properly be conveyed from one House to the other.
Pádraic O Máille: Tá mise ar dhuine a cheap go ndearnaidh an Cathaoirleach dul amudha mór ar an rialú a dtug sé ar an gceist seo mí ó shoin. Tigim go maith go bhfuil gnó an chathaoirligh go deacair cruaidh i n-amannaibh go mhór nuair a thagus ceisteanna aimh-réidhteacha go tobann os a chomhair; ach seo ceist nar tháinic go tobann air, mar do bhí an rialú a dtug sé sgríobhtha síos ar pháipéir aige.
I fully appreciate the fact that the duties of the Cathaoirleach are difficult and that often questions come before him without much notice. He could not put forward that claim in this instance, because when he came to the House he read out his decision. That showed that he had given considerable consideration to the matter, and we felt when the ruling was being read out that it was at variance with what it should have been. Senator Brown is a very able lawyer, but he made no case for the Cathaoirleach's ruling. I do not believe anyone could make a case for that ruling. I am sorry that Senator O'Farrell has left the House as we had a very impassioned advocacy of the Cathaoirleach's ruling from him. I claim that the chief condemnation of the Cathaoirleach's ruling was Senator O'Farrell's advocacy of it. The Senator based his arguments on the importance of newspaper reports and of rumours, but in the Committee's Report he supported the insertion of the new Standing Order which in its own way is a condemnation of the action of the Seanad on that occasion, while the Senator also said he should act differently in future. Senator Milroy, who  stated that he is the leader of a Party here—
Padraic O Maille: The Senator said that he was surprised when he heard the Cathaoirleach's ruling five minutes before the meeting. That proved that Senator Milroy's Party did not agree with the ruling. Instead of bettering the position of the Cathaoirleach I think the suggested Standing Order is a condemnation of the way he acted. The Senator based his case largely on newspaper reports. Senator O'Farrell says that newspaper reports are all-important, but we would be anxious to hear from Senator Brown, when he is replying and making a case for the Cathaoirleach's ruling, how important they are as regards evidence. We are anxious to hear that, because Senator Brown is a very able lawyer. The attitude of the 15 members who signed the requisition to have this question brought before the Committee on Procedure and Privileges is fully justified, seeing that there was no precedent for the action taken on that occasion in this or in any other House.
Mr. Johnson: I do not want to go into the merits of this case, but I would like to say that, in my opinion, the greater part of this trouble arose from the fact that a motion in the name of Senator Robinson appeared on the Order Paper to take all stages of the Bill on that day. That seemed to me, at any rate, to be an indication that the Party supporting the Government had a desire to rush this business. How that motion appeared on the Order Paper I cannot say, inasmuch as it was late on the previous night that the Dáil passed the Bill. It seems to me that the fault which initiated all this trouble  was in putting either the Bill or the motion—and particularly the motion for closure—or whatever it is—to take all stages on the Order Paper for the next day's business. I understand from Senator Robinson that he had no desire at all to have all the stages taken that day except to facilitate, as he thought, the desire of the House to dispose of the business. It is for him to speak on that point, if he wishes.
On the point raised by Senator Comyn, that the possible opposition of a Senator would have the effect of blocking discussion of the closure motion, you, Sir, ruled that that was a misreading of the rules of order. If that is so I draw attention, so that Senator Brown can deal with it when replying, to paragraph 4 of the Committee's findings:
It seems to me that this conflicts with your ruling, and the findings of the Report of the Committee on Procedure and Privileges which, presumably, will be adopted by the House, would seem to be a direction for future rulings on your part.
Mr. Brown: Senator O'Farrell has saved me the trouble of replying to a number of objections that were raised, but there are one or two that I ought to say something about. With reference to what Senator Johnson has just said, it is true that the Report suggests there must be general agreement and the consent of the Cathaoirleach to a motion such as was put down in the name of Senator Robinson. General consent means the opinion of the majority of the House.
“Any Standing Order or Orders of the Seanad may be suspended for the day's sitting and for a particular purpose, upon motion made after notice: provided that in cases of necessity, of which the Cathaoirleach shall be the judge, any such Order or Orders may, with the unanimous consent of the Seanad, be suspended upon motion made without notice.”
Mr. Brown: That is so, but there was the possibility of no member objecting and of the motion that had been put down by Senator Robinson being carried by the House that day. It was a possibility. There are only one or two matters that I wish to refer to. The first is an objection that was made by Senator Comyn and afterwards by my  friend Senator Lynch. Senator Comyn objected to the Cathaoirleach acting on whispering gossip, and Senator Lynch objected on the ground that the Cathaoirleach ought not to have taken any notice of newspaper reports. Now, with great respect, it does not matter how it got to the mind of the Cathaoirleach that there was a possibility of a petition by the other House or this House on the question of a Money Bill. It does not matter whether it was through a newspaper or how it occurred to his mind: if, without any prompting of any sort, there being no Standing Order of our own to call his attention to the matter, it occurred to him that this possibility might arise, no matter how it came to his mind, he was bound to give the ruling that he did. It is not a question of whether it is based on newspaper rumour or gossip of any kind. It does not matter. Once it came to his mind that this possibility might occur, the Cathaoirleach ought to have made the ruling he did make.
I should just like to say a few words with reference to the attack—perhaps I should not call it an attack—that was made by my old friend, Senator O'Neill, on the Cathaoirleach. Senator O'Neill accused the Cathaoirleach of taking the Chair and acting as judge in his own case, and all that kind of thing. I would simply remind my friend the Senator that the Cathaoirleach took the Chair and signed the report in accordance with one of our own Standing Orders. If he was present there under the circumstances —he was bound to take the Chair. The Standing Order concerned is Standing Order 60, which says that, if the Chairman is present, he must be Chairman of the Committee on Procedure and Privileges.
Mr. Brown: The Cathaoirleach was bound to take the Chair. He took the Chair, and, as mentioned in the Report, it was unanimously decided that the people who had signed the requisition referring the ruling to the Committee should be asked to stay. Senator Douglas proposed the resolution, which was carried unanimously, and we were all there, with the will and approval of us all. There is another matter I should like to refer to, and that is that the Cathaoirleach did not vote. He gave no decision in his own favour. He did not vote. He signed the Report because he was bound to sign it, as Chairman, under the Standing Order. Senators Lynch and Comyn both stated, very fairly and rightly, at the Committee, that the Cathaoirleach was not on his trial. He certainly was not. There was no accusation of any sort against the Cathaoirleach. We were there simply to decide whether, under all the circumstances, the Cathaoirleach had given the proper ruling within our own Standing Orders, one of them being the one that refers it to him to do the best he can—to do what he thinks right—where there is no Standing Order. I submit that the Report ought to be adopted by the House.
98A.—(1) Whenever the Cathaoirleach has been informed in writing by the leader of any Group or Party in the Seanad that a requisition for a Committee of Privileges under Article 35 of the Constitution is in process of being signed by members of either House of the Oireachtas with respect to a Money Bill, the Cathaoirleach shall announce such fact to the House, and all proceedings on such Bill shall be suspended until the period within which such requisition may be presented shall have expired.
Mr. Brown: It would appear, Sir, from the discussion we have had on the first motion on the adoption of the Report, that there is a certain amount of difference among the Senators as to the propriety of having this added to our Standing Orders, or as to the form of the particular draft order that is on the Order Paper, and I would be very much inclined, subject to the opinion of the House, not to move the motion just now, but simply to adjourn it generally. It may be the right thing afterwards, perhaps, to go back to it; but, having regard to the criticism of some of the members as to the form of this, and as to the propriety of doing it so near our deathbed, I think that, if the House would allow me, I would ask the House to postpone it generally.
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