Wednesday, 13 March 1946
Seanad Éireann Debate
“but the Minister shall not provide in each calendar year (other than the calendar year 1946) less than six days to be the qualifying dates for persons claiming a children's allowance for the first time”.
This amendment is perfectly clear in its wording, without any explanation from me. The Minister, in the White Paper issued with the Bill, states why provision was made in the Bill for qualifying dates for different categories. Persons claiming for the first time would form one of the categories, and it was the intention to have six qualifying dates in each year. I have provided in my amendment that that shall be a statutory provision. It is perfectly clear that that is the Minister's intention at the present time, and I do not see why it should not be incorporated in the Act itself. It could not be incorporated for this year, because we are already in a calendar year.
Minister for Industry and Commerce (Mr. Lemass): I do not think that this amendment is necessary, and I do not know why Senator Sweetman thinks it is necessary. I informed the Seanad on the last occasion that one of the changes effected by this Bill was intended to permit of the possibility of six qualifying dates in the year. It is not necessary to make that a statutory obligation to ensure that it will be done. One of the aims of this amending Bill was to get away from certain rigid forms in the main measure, and I think that it is undesirable that this provision should be inserted in specific, statutory form. I have informed the Seanad, as I did in the White Paper, that, by reason of the changes in the administrative scheme which this Bill is intended to effect, a position will be  created in which persons can be admitted to the scheme on six different dates, instead of on two dates, as at present. I do not think that the Senator really believes this amendment will be necessary, and I object to its going into the Bill at this stage, because it implies that the Government had some other intention in introducing the Bill, and that it is necessary for the Seanad to insist upon the insertion of this statutory obligation to ensure that effect will be given to its intention.
Mr. Sweetman: ——by the remarks of the Minister. I do not think that the Minister for Industry and Commerce is quite as guileless as he seems. The objection he has made could be made to an amendment introduced into any Bill. The plain fact is that the Tánaiste may not always be the Minister for Industry and Commerce. There might be another Minister who would consider it desirable to have only one qualifying date in the year. That would be a gross injustice to those entitled to claim the children's allowance for the first time. We have absolutely no assurance that the purpose of this section will be achieved unless provision is inserted in the Bill. The Minister made quite clear, on Second Reading, that one of the reasons why this Bill was being introduced was to ensure that people could come into this scheme at an earlier date than at present. That can be achieved only if there are more qualifying dates than two. If it can be achieved only in that way, then we should ensure that the basis upon which we are asked to pass legislation is enshrined in that legislation and that we are not asked to pass something which may be altered on any change of Government immediately after it has been passed. I say that without in any way imputing any desire on the part of the present Minister to mislead us.
Mr. Lemass: As I previously explained, the Children's Allowances Act of 1944 provided for an administrative  scheme which involved the admission of new claimants twice a year. It was because of experience gained in the administration of the scheme that the possibility of improving it in the interests of new claimants emerged. It became clear that we could so adjust the administrative scheme as to permit of new claimants coming in not merely twice a year but on six separate dates during the year. I do not know whether experience will require a modification of that decision or whether it will permit of an improvement even on the scheme now contemplated. But the fact that did appear to be obvious was that we were unwise, in 1944, in tying ourselves up to a scheme of administration which had not been then fully tried out and in creating a position in which a change in that scheme, which did not really affect the principle of the measure, as the Oireachtas intended to pass it, could not be made without further legislation.
The position in this regard is that it seems practicable now to adopt the new scheme which I outlined on Second Reading, which will permit of new claimants coming in with a lesser period of delay. It may be that difficulties will emerge which will require modification of that position. It may be that circumstances will permit of even a larger number of qualifying dates. I think that it is much better to have the Bill framed on this basis, that the Legislature sets down the general principles which it wants to see applied, and leaves in matters of detail of this kind a measure of discretion which will permit of the operation of the measure without undue rigidity and without tying it up completely in red tape.
Senator Sweetman referred to the possibility of another Minister deciding to operate this power in an arbitrary way, to the detriment of people claiming children's allowances. I think that that possibility is so remote that it need not be considered. If that situation should arise, neither the Dáil nor the Seanad would be powerless to draw attention to it. If the position was that there was a majority in the  Oireachtas supporting the change, it would be a comparatively simple matter for the Minister concerned to effect the necessary legislation. The contingency, however, is so unlikely that it is completely unnecessary to erect safeguards against it.
Mr. Sweetman: The Minister, on Second Reading, stated, at column 669, that this provision for six qualifying dates was in the Bill. It is perfectly clear now that it is not in the Bill and that it is to be prescribed by Order.
Mr. Hayes: The Minister made a rather good case in his second effort for having liberty to prescribe either less or more than six qualifying dates. I should be inclined to agree with him but I agree with Senator Sweetman in objecting to the Minister's first line of argument, that this attempt to bind the Minister in an Act of Parliament was in some way a reflection on him.
Mr. Hayes: Perhaps we do not understand words in the same way. That seemed to me to be the point the Minister was making. I heard the point made before. I heard it made by Ministers before the present Minister came along. It is an old point and I think it is an unsound point. Experience in the working of the Act has shown that more than two qualifying dates are required. I do not object if regulations are to be tabled to have even more than six qualifying dates if experience proves them necessary.
This is another matter in which the Minister expressed his views but it is a more serious matter than the last. I can see possibilities of regulating  categories other than in a geographical manner—possibilities which would open up a very undesirable field. The Minister might decide that it would be administratively easier to group applicants, instead of geographically, according to occupation—carpenters in one category, builders' labourers in another, painters in another, and so on. That would be highly undesirable because there would be no certainty. I am in entire agreement with the Minister when he says that it is desirable to have flexibility and to give him power to remove one area to another area so as to average out the three areas. But I want to be quite clear that the basis of such averaging will be geographical and not occupational.
Mr. Lemass: As I read the Senator's amendment, it was ambiguous. I was not quite clear as to what it meant. Now that he has explained it, the amendment is clear. It is equally clear that it is based upon a misunderstanding. It may be that, at some time, it will be decided that some other basis of grouping than the geographical basis will be more suitable to the administration of the scheme. We considered other bases of grouping, as I informed the Dáil and Seanad, when the Bill was being originally introduced, and we decided that, having regard to the circumstances, the geographical basis of grouping was the most desirable.
We did not provide for these groups in that Bill, because it was desired again to take rigidity out of it. I think we made a mistake in the original Bill providing for geographical areas without having experience of the operations of the measure or even the statistical data upon which to delimit those areas with the administrative result that we intended. However, I think the Senator is forgetting that in so far as new claimants are concerned, persons who become qualified under the new qualifying dates, to be fixed under Section 3, cannot be grouped on a geographical basis. Persons in that particular category, new claimants, would come from all parts of the country and would have payment periods fixed on a personal basis. At a stage, at the end of the first payment period, each person  will be automatically placed in the geographical group determined by his place of residence. You cannot, just on the date on which he applies, place him in a group determined on a geographical basis. If the Senator understands the administrative device, as I explained it to him, he will realise his amendment is impracticable. On the qualifying date a number of persons— say, 10,000 persons—will apply to be admitted to the scheme and to receive children's allowances as from the beginning of the next payment period. These persons will come from all over the country and they will have fixed for them on a personal basis a payment period which will take into account the area in which they reside. We are ensuring that the end of that payment period will in each individual case terminate at the end of the appropriate payment period for the geographical district in which their residence is located. At that stage, they will be in their appropriate geographical group, unless they change their residence.
It is not necessary, nor is it practicable, to make the provision proposed in the amendment, nor do I think is it wise at this stage to leave out the possibility at some future date of the abandonment of the geographical basis and the adoption of the vocational basis such as Senator Sweetman foreshadows. I do not think it is likely to be practicable but if it should prove to be a better system of administration there is no reason why we should have a statutory provision against it.
Mr. Sweetman: It is not desirable to leave out altogether the vocational basis without further consideration, but I think that it is not only desirable but essential to come back to the Oireachtas before we do that. Quite apart from that, the Minister, as I understand the working of his scheme, is misconstruing the application of this amendment. The whole country, the whole State, is divided into three areas for the purpose of the administration of this scheme. These three areas are divided geographically in such a way, or to be more accurate in describing it, after the Bill passes will be divided  geographically, in such a way, that the number of persons claiming children's allowances in each of these three areas will be approximately equal. Obviously, doing that will mean that you are going to have easier administration and on that I am in entire agreement. Apart from that, there are the people already claiming allowances and there are going to be new people to claim allowances. Supposing, we take for example, at the moment, that the qualifying date for what I would call the western area is the 1st May and that these new people apply now. We had better take the 1st June.
Mr. Lemass: That is the qualifying date for the two categories of persons, one, the persons in the appropriate group repeating their claims and, two, new claimants. I want the Senator to relate that second category to his amendment.
Mr. Sweetman: I am not going to have the slightest difficulty. There is going to be a qualifying date for the western area. A new claimant has a third child to-morrow. That claimant's application comes in for the first time and the claimant resides in Roscommon shall we say. Another claimant comes in for the first time in Mayo on the following day. The Minister is going to make a new category as he said himself of groups by counties.
Mr. Sweetman: All new persons claiming for the first time, all the new people who are claiming in Roscommon will be put together in a group and they will be qualified. Then they will be transferred to the western payment period and they will come into the scheme—there is an extra date before the 1st June. Probably it will be the 1st April under this Bill. They will come into the scheme and be paid from the 1st April for eight months. That category would be a separate category.  It would be a category of new persons, but the category would be grouped by relation to geography because you are not going to put into the same scheme people who are in the western region and in the eastern region. Quite obviously under the Minister's own administration it could not be done. The only difference about it is that my amendment does not make it impossible that you would have one category for each of the three areas of existing claimants and you will have several new categories in each of the three areas also for new claimants, but they will be grouped on a geographical basis as the Minister now intends. I want to make certain that before the Minister changes the geographical basis to a basis of vocational grouping he will have to come back to the Oireachtas.
Mr. Lemass: I will make another attempt to make the position clear to the Senator. If we are going to make an effective device to deal with new claims there must be after the qualifying dates two categories of persons. One, those in the group renewing their claims and those applying for the first time from any area. I want to say that those that are in that category of new claimants cannot be grouped on a geographical basis.
Mr. Lemass: What is the point in doing that? One of the groups on the qualifying dates will be the new claimants and they will come from any part of the country. At some subsequent period they will have to renew their claim on the next qualifying date for their area and whatever is the qualifying date for their area will also be the qualifying date for another category of persons, namely, new claimants, on that day.
Mr. Sweetman: He has got the right tail on this dog. If the Minister does not like the wording of my amendment I am quite prepared to accept any wording that will ensure that the grouping will be geographical.
Mr. Lemass: No, I do not propose to put in the Bill the obligation of geographical grouping. I mentioned to the Seanad the reasons why I thought that was, in the present circumstances, the best system.
Mr. Sweetman: Now we really know the situation. The situation clearly is this, that the Minister wants to make certain that he has a further extension of the powers which his Department, more than any other Department, has been strengthening or extending in the last four years.
Mr. Sweetman: We had it the other day in the House and I do not propose to run over the ground again when we were discussing the question of delegated legislation. I do want to say a few things on the subject now as it is quite clear what the Minister has in his mind. We have got to make certain that the Oireachtas when it enacts legislation is not enacting certain vague principles without getting down to what these principles mean. Supposing, for example, the Minister came in here and asked us to enact a law to say that all men should be honest, but leaving it to the Minister himself to enact the manner in which dishonesty should be dealt with, to prescribe the things that were dishonest, and so forth, would we not regard it as ludicrous? That is exactly the same principle.
I am entirely with the Minister when he states that he wants flexibility in administration. I want to see flexibility in administration too, but equally I want to see that the principles behind the administration of the Act are principles which will not be changed without the knowledge of the  Oireachtas. The Minister has been most careful to ensure that he will give no undertaking that the Oireachtas would again be consulted before he would change the geographical distribution. If we are to have a vocational basis for children's allowance then we shall have a basis of uncertainty so far as many people are concerned. They will not know where they are to go or when they are to make a claim, whereas if a geographical area were prescribed everybody in that area would know beyond question what they were to do. It is impossible to enact legislation to cover every contingency, but equally it is possible for legislation to lay down the principles in such a way that the administration of these principles will be carried out in accordance with the desire of the Oireachtas at the time of the making of the law. If you are going to leave a matter of such immense importance as a change in the whole basis of the issue of children's allowance to the Department, then it appears to me it would be very much better for the Minister to come in here with a Bill of three lines, saying: “An allowance of 2/6 shall be payable in respect of each child and the Minister shall say when and in what manner such allowance shall be paid”.
Mr. Lemass: The fact in this case is that I came in here with a proposal to improve the scheme for the payment of children's allowances in the interests of new claimants. I explained to the Seanad how that could be done and how the scheme which the Seanad approved in the original legislation could be amended in certain ways, so as to benefit new claimants. Senator Sweetman now wants to make it appear that he is forcing the Government to do something which the Government itself proposes to do and which nobody else thought of doing until the Government produced its proposal. The Seanad divided: Tá, 17; Níl, 18.
|Baxter, Patrick F.
Counihan, John J.
Duffy, Luke J.
Fearon, William R.
Keane, Sir John.
|McGee James T.
Madden, David J.
Moore, T.C. Kingsmill.
O'Donovan, Timothy J.
O'Reilly, Patrick John.
Parkinson, James J.
Ruane, Seán T.
|Clarkin, Andrew S.
Farnan, Robert P.
Keane, John Thomas.
|O Buachalla, Liam.
O'Dea, Louis E.
O Siochfhradha, Pádraig.
Nic Phiarais, Maighréad M.
Ryan, Michael J.
Sections 3 and 4 agreed to.
Mr. Sweetman: I move amendment No. 3:—
In sub-section (2) to delete paragraph (a).
I am not as clear on the interpretation of this section as I was on the previous one. So far as I can see, the section means that the Minister is to determine what the words “normally reside” mean. I think it was Section 3 of the Principal Act which contained very clear and specific, perhaps too specific, provisions on that matter. The Minister now wants to declare what the meaning is of these two words. I think it would be very much easier, not only for the referees appointed under Section 8 of the Principal Act, but also for claimants, to know what their possible rights would be if there was a definition of the words “normally reside” included in the Bill. It is not for me to attempt to define what the Minister has in his mind, but I do submit that if he wants the words “normally reside” to mean something other than their normal meaning, he should make clear in the section what was in his mind before he introduced the Bill. I am sure the Minister is not going to sit down and work out rules after the Bill has gone through, because that would be a reflection on him, and I am not prepared to suggest anything of the kind at this stage. I do submit, however, that for the deciding officers, the referees, the claimants and the members of the Oireachtas—who will be called upon if the matter is not made clear in the Statute—it is highly desirable that what the Minister has in mind should be made clear in the Bill. I speak subject to correction on this, but it appears to me that what the Minister has in mind is to have an ad hoc decision or decisions: to have some general rules laid down. I think that if some general rules were laid down for us so that we could see the practical aspect and effect of them, it would be desirable.
Mr. Lemass: I am sure the Senator understands that the adoption of his amendment, as it stands, would merely have the effect of leaving it solely to the discretion of the deciding officers to determine according to the facts of each individual case. That, I am sure the Senator will agree, would be undesirable. In the first place, in so far as decisions have to be made, it is preferable that they should be made by the Minister rather than by the deciding officers appointed by him. Secondly, it is desirable that all deciding officers should make decisions in  accordance with the same principles and according to the same rules. I gathered from the Senator's remarks that his amendment is really intended not so much to change the Bill as to create a situation in which it would be necessary to define in the Bill the rules which would guide the deciding officers. There is something to be said for that contention and, if the position were as simple and clear-cut as the Senator assumes, that course would have been adopted. I think I could easily define now rules to be embodied in the Bill, for the purpose of making regulations which would, in fact, operate in the great majority of cases. But, in the great majority of cases, there will be no difficulty. We have not had sufficient experience yet of the various types of cases that may arise to enable us to say that rules which we would embody in the Bill now, or in an Order made now, would be complete in every respect, and sufficient to ensure that the deciding officers would know precisely the manner in which each case coming before them should be decided. The reason why the second sub-section of this section appears as it is now is precisely for that reason: the possibility that whatever rules we might draw up and embody in the Bill now, on the basis of our experience to-day, might prove insufficient to guide the deciding officers in all cases, or might require amendment at some stage to deal with new types of cases and new circumstances as they came to light. I do not know; nobody could say definitely that no case will ever arise in the future which may be dissimilar from those which have arisen in the past and which could not, therefore, be determined on the basis of rules made in the light of past experience.
Such cases may happen, however, and the argument against framing rules and embodying them in the Statute now is that they might result in injustice and in depriving certain people of children's allowances to which they were entitled, or might prevent us dealing with certain cases which, obviously, would not be very large in number. I think, therefore, that from the point of view of the smooth working of this measure, and to enable the rapid  adaptation of rules to cases which might not have been foreseen, it is preferable to proceed on the basis laid down here, and to give the Minister power to prescribe the rules which will bind the deciding officers and permit them to decide on all the cases as they come before them, with uniformity as between one officer and another, and to draw the Minister's attention to cases where the existing rules do not seem to be adequate.
Mr. Hayes: Surely, the purpose of this section is to decide, as between one person and another, where two or three children might be residing with their parents or other relatives, as to what would be regarded as “normal residence” for the purpose of getting the children's allowance.
Mr. Lemass: Yes, that is right.
Mr. Hayes: Surely, it should be quite easy to decide or define what is normal residence. I take it that that means where the children are normally residing, whether with their parents or with other people. According to the Minister, you are going to give allowances for two or three children to people with whom they do not normally reside at all. Now, I am not trying to be clever or funny here at all, but surely “normally residing” is capable of a general definition, where there might be a certain allowance for some elasticity under the rules. Otherwise, it would appear that the Minister makes rules for every case. Of course, I can conceive of a case where the Minister might have to make a special rule for a special case, and that seems to me to be an indication of the whole scheme by which people will get allowances for the children. That should be a matter for the Oireachtas, but, instead of allowing the Oireachtas to decide what is meant by “normal residence”—by laying the rules and regulations on the Table of the House and so on—you are going to leave it to the deciding officer to decide what “normal residence” means.
In other words, the words “normally residing” in this Bill may be interpreted in a manner which no reasonable person would adopt in regard to  the matter of “normally residing”. I am not accusing the Minister of wanting to do anything wrong—I know that he does not want to do anything wrong. He wants to give children's allowances to the maximum number of people, but he wants to keep the power within himself to decide whether a particular person is to get the allowance, and I think that that is quite wrong. I think it should be possible to determine, on a stated principle, what persons should get the allowance. If there is no stated principle—and there is none here in the Bill, so far as I can see—then the whole thing becomes arbitrary.
Mr. Baxter: That is the impression the people get.
Mr. Hayes: Not alone do the people get that impression, but it seems to me that this leaves the thing purely arbitrary, and that is what is wrong with the whole idea. I admit that the Minister is quite right in his interpretation of what Senator Sweetman wants. He wants to take out this paragraph, so that the Minister would be compelled to define what is meant by “normally residing”, and I think that that is quite capable of being done. The Minister, of course, may say that, in regard to many enactments, various difficulties, which had not been foreseen, arose afterwards. I quite agree, but it should be possible, between the Attorney-General, the parliamentary draftsman, and the Minister himself, to find some way of defining what “normally residing” means, and surely the principle could be embodied in this section, and the power to make rules and regulations could remain with the Minister. This is not a matter of questioning the bona fides of the Minister, but the Minister's approach is that he is so anxious to get the thing done that he wants to decide in an arbitrary manner that such-and-such a person should get the children's allowance and, of course, that also means that he can decide in an arbitrary manner that another person should not get it.
Mr. Lemass: I think the Senator misunderstands the whole position. In the Principal Act, we tried to define  what “normal residence” meant, but experience has shown that that definition gave rise to difficulties in the case of conflicting claims, and we want to avoid such conflicting claims.
Mr. Baxter: For instance?
Mr. Lemass: I gave these examples in this House before. Senator Baxter, if he had been here on the Second Reading, would have been aware of the type of cases I have mentioned. I gave, for instance, the case of a family where, for one reason or another, the children were residing with the grandparents, and the parents were making no contribution towards the maintenance of the children residing with the grandparents. In the original Act, “normal residence” was interpreted in relation to maintenance, and the fact that persons were maintaining a child who was residing with them was prima facie evidence that the child was normally residing with them.
Mr. Sweetman: Oh, no. Surely, it is the other way about. Surely, the interpretation of Section 3 was that “normal residence” meant that the child should be residing there, and there was no question about maintenance at all.
Mr. Lemass: That is true; the essential thing there was maintenance, and maintenance was assumed to be where the child normally resided.
Mr. Sweetman: But the Minister stated that “normally residing” was defined, but I cannot find it.
Mr. Lemass: Maintenance was mentioned there, but, as I have stated, experience has shown that there were conflicting claims. The parents claimed children's allowances on behalf of their children who were residing with the grandparents, and then the grandparents also claimed for the children's allowances on the ground that the children were being maintained by them.
Now, we had so many difficulties in applying the provisions of the original Act that we decided to cut clear of them altogether, and to put in one condition which must be complied with by the claimants. When the original Bill was introduced, a number of other  qualifications were contained in it, but were eliminated by amendments. It is proposed now that claimants have to conform to only one condition in order to secure children's allowances. That condition is that qualified children in the requisite number are normally resident with them.
The question arises as to what is “normally resident”. In the particular case I mention, the children were temporarily absent from home on the qualifying date, and were residing with their grandparents or other relatives, even though the children were normally resident with their parents.
Senator Hayes says that if we can make rules in the Department, we can also put a section in the Bill to cover them. That is true. We can make rules on our present experience, but I am not going to say that we have succeeded in solving all the difficulties which have confronted us in the administration of this measure.
We made an attempt to solve these difficulties in 1944. The relevant section in the 1944 Act was amended more than once, and, even when it was finally passed by the Oireachtas, it proved to be unsatisfactory in practice. We can devise rules, but I feel certain that these rules will be also insufficient to cover every set of circumstances in which a deciding officer may be called on to settle. Therefore, I think, it is desirable that we should not proceed on that basis in the present Bill. I feel that we should not put these rules into the Bill, because our experience may show that amendments to suit varying circumstances will be necessary. For that reason, it is proposed that the Oireachtas should adopt this principle that the Minister should have power to make rules.
The Minister has no right to decide in particular cases. Particular cases will be decided by the deciding officer applying the rules made by the Minister. Necessarily, these rules will have to be of a general character. They cannot be particular rules for particular cases. They will have to be general rules to be applied by the deciding officer in the particular cases. The argument against putting them in the Bill is that it will make the position  much too rigid. Even though our experience of the administration of the measure is fairly long, it is not long enough to enable us to say definitely that we can prescribe the final form of the rules which the deciding officers will apply. At some stage, it will be possible, perhaps, to take the rules as modified by experience and to say that after our experience we can now make rules covering every particular type of case which may arise. But, at present, that cannot be done. Whatever theoretical objection Senators may advance, I feel that it is unwise to attempt to put the rules into definite form now. It would impair the smooth working of the measure.
Mr. Ryan: This is a new effort in legislation. The Legislature has enacted that any person with whom three or more children normally reside shall be entitled to a family allowance. The Minister now makes a claim to impose an interpretation of the expression “normally resides”. Whether a child normally resides here or there is a question of fact in every particular case, and I think it would be beyond the power of the Minister to make rules which would cover every particular claimant.
This Bill seeks to amend the Children's Allowances Act of 1944. Section 8 sub-section (1) of that Act enacts:—
“Subject to the provisions of this Act and in accordance with regulations made thereunder, every claim for or in respect of a children's allowance shall be made to the Minister, and every question arising thereon or in relation thereto shall be determined by the deciding officer.”
Sub-section (2) of the same section provides that if any claimant is dissatisfied with an award or decision of a deciding officer in respect of any children's allowance, the question shall, on application being made within the prescribed time, be referred to one or more referees selected by the Minister in the panel of referees.
Now, in the Income Tax Acts, the Revenue Commissioners do not make rules for the purpose of determining where a person resides; that is a question  of fact to be determined by the Special Commissioners. Here, we appoint deciding officers to decide questions of fact with an appeal to a referee. I think the deciding officer is the person who rules whether a particular child resides with a particular claimant, and I cannot understand why there has been any difficulty up to the present time. It is purely a question of fact, and it is a matter for the deciding officer to make up his mind on facts. If the deciding officer is not capable of doing it, then the referee ought to be capable of doing it.
I cannot see why rules should be made for the purposes of determining questions of fact, and I think that no rule can be made which would be applicable to every particular case. Each claim must stand on its own two legs. There may be different facts, there may be thousands of different cases and I cannot see how it would be possible for a Minister to make rules to cope with all of them. In my opinion, the making of rules by the Minister tends to give an artificial meaning to the words “normally residing”. It is not what the Legislature intended in the words “normally residing”, but what the Minister thinks the Legislature meant. I say that the words “normally residing” should be defined in the Bill, and that if any question of law arises, it should be decided by the courts.
Mr. Lemass: But, of course, that matter would not be decided by the deciding officer. The Senator is wrong in thinking that every single case should be decided simply by the deciding officer. The Bill says that if the child is a qualified child on a qualifying date, then the claimant is entitled to a children's allowance, if there is residing with him the requisite number of qualifying children. It is not practicable to cover in the Bill all cases which may arise. But, nevertheless, the Bill provides for the payment of allowances in respect of children who are normally resident with their parents on the qualifying date. An effort must be made also to provide for cases where there has been some interruption in the  residence of the child in the parental home.
Many such cases have been mentioned in the course of these debates— a very considerable number has been mentioned in the debates on the principal Bill. Power must be given somewhere to make rules which will ensure that the deciding officer will not rigidly apply those qualifying provisions so as to prevent people from getting the allowance who might not, because of accidental circumstances, be able to sustain their claim.
In the principal Act, we had very elaborate provisions to deal with particular cases of persons who were entitled to sustain claims in respect of children they were maintaining. Elaborate as these provisions were, we found they were insufficient to cover every type of case or to eliminate the possibility of conflicting claims in respect of the same children. We decided, therefore, to try to secure a simpler definition and to take power to modify the rules, as experience had shown to be necessary, until we had a clear and workable system. I do not see any objection whatever to giving the person responsible for the administration of this measure power to make general rules applicable to general circumstances. It is a very far-fetched, theoretical objection to say that if we cannot work this scheme on a rigid basis, in which everything is prescribed in advance, we should not work it at all. I see no objection whatever, in democratic theory, to the Legislature adopting a scheme which requires to be operated by way of giving the administrator power to make general rules applicable to general circumstances.
Mr. Ryan: I should have no objection if the section were phrased differently. If the section provided for residence “for the purposes of this Act” and if the Minister were given power to determine with whom the qualified child should reside “for the purposes of the Act,” I should not object, but the use of the term “normally resides” creates a new situation. If there is to be a residence qualification for the purposes of the Act, I cannot understand why the Minister should get  power to make rules determining with whom a qualified child “normally resides”. “Normally” applies only to the circumstances of the particular case. If the Minister thought it necessary for the working of the Act that the child should reside with a person “for the purposes of the Act,” then he could make rules accordingly. What I object to is the making of rules for determining a fact. You could make rules to determine whether a person was over 21 or under 21. I do not understand why it is necessary to make rules to determine this particular matter. If a residence qualification was necessary, then a residence qualification might be prescribed by rule but I cannot understand why the Minister should require power to make rules to determine where a child “normally resides”. A qualified child may reside with two different persons. It is a question of fact then with which person the child “normally” resides. I have no particular objection to the principle but it is rather inapt to make rules for the purpose set out in the section.
Mr. Lemass: I do not think that there would be much difference between the section as it stands and as it would be if the phrasing suggested by the Senator were adopted. Under the Principal Act, we put the emphasis on “maintenance”. When we were devising this scheme originally, it seemed that it was the natural thing to say that the amount of money intended to assist in the maintenance of the child should go to the person who was, in fact, maintaining the child. We endeavoured to prescribe in that Act rules for determining what constituted “maintenance”, and “maintenance” was as much a question of fact in that case as “normally resides” will be in the future. Those rules were quite elaborate. If a child were residing with its father, we provided that the father should be deemed to be maintaining the child, even though a rich uncle was contributing to the cost of the child's education or sustenance. And so on with regard to the different types of case we could then visualise.
Experience has shown that those rules were too rigid, that there were  many cases of families temporarily split up on the qualifying date in which an allowance could not be paid because all the children were not in the same home on the same date. If they had been together on the qualifying date, the allowance would have been paid to somebody, but because two were with a parent, two with a grandparent and two with an uncle, none of the homes was allowed to receive an allowance. We are taking the emphasis off “maintenance” and placing it on normal residence in that particular type of case and we are taking power to make rules whereby all the six children will be deemed to be normally resident in the parent's home, even though, on the qualifying date, they may be actually resident somewhere else and be maintained by someone else. In such circumstances the children's allowances would be payable to the parent in respect of the six children.
Apart from the difficulty that the system envisaged in the 1944 Act did operate to deprive many claimants of the allowance, there was also the possibility, to which I referred earlier, of conflicting claims. A claim might be made from, say, the uncle's home, where two of the children had gone to reside, the uncle having two children of his own. There would have been four children in the house on the qualifying date, and there was the possibility of a claim from that house, even though two of the children were, in a sense, only temporarily resident there and were normally resident in their own home. The uncle could take advantage of the addition to his family to sustain a claim, and the parent, not having the requisite number of children in the house on the qualifying date, could not sustain a claim. The balance of argument seems to be in favour of removing the term “maintenance” from the Bill and making normal residence the basis of the scheme. In that way, we could, by framing rules designed to ensure that children would be related to their parents in all circumstances unless it was quite clear that the link between parent and child had been finally and permanently broken, make the parent eligible to receive the children's allowance and simplify the administration  of the Bill by bringing it into closer accord with what the public regard as the natural arrangement.
The question that arises on this amendment is, if normal residence is to be the deciding qualification, and if there are to be rules to interpret “normal residence” for the guidance of the deciding officers in the particular cases to come before them, can we not define those rules now? We could do so. I have no doubt that we could frame rules for the guidance of the deciding officers and put them in the Bill but I am afraid that rules framed now, in the light of our present experience, would also prove to be inapplicable in certain circumstances—would prove to be so rigidly framed as to create new difficulties and be inadequate to cover all the types of case likely to arise. I think it is desirable that, instead of trying to frame in final form and to embody in the Bill rules which cannot be changed except by subsequent legislation, we should adopt the device of giving the Minister power to make rules and to amend those rules if experience shows amendment to be necessary. At some future stage, when the administration of the children's allowances scheme has behind it the body of experience which is behind, say, the unemployment insurance scheme at present, then rules could be prepared which we could be reasonably certain would be complete and applicable to all cases that would arise. May I say, however, that, even in the case of the unemployment insurance scheme, the governing Act of which was passed in 1911, there are still coming for determination by the Minister, in accordance with the provisions of that Act, specific cases for which there are no precedents. We have sent forward to the courts recently for determination by them cases which the Minister did not feel competent to decide on his own account, although we have had 30 years' experience of the administration of that Act. In the case of this Bill, we have had only a couple of years' experience and I think that it is far too soon to decide in final form the rules which are to guide the deciding officers.
Mr. Baxter: They need not be in final form.
Mr. Ryan: Between now and the Report Stage, perhaps the Minister would consider the phraseology of that paragraph so as to include power to prescribe rules for determining with whom a qualified child shall be deemed normally to reside. Whereas a child may, in fact, normally reside with his parents or with a certain person, if there is to be certainty, and if the Minister has to determine something which he may find difficulty in determining by rule beforehand, it would be no harm to suggest that these rules should prescribe that a child should be deemed to be resident normally with a certain person in certain circumstances. I am just making that suggestion because, as it stands, he is taking power to determine a fact.
Mr. Lemass: I think the Senator's point is that instead of the form of words “child who normally resides”, which is a question of fact, the Bill should give power to deem the child to be normally residing with the person on a qualifying date, although in fact he is not.
Mr. Ryan: No
Mr. Lemass: That is what we are proposing to do, to deem them to be normally residing. They may not be actually residing on that day, but on the ground that they are normally resident, they should be deemed, in fact, to be there. I will have the drafting of the section looked into.
Mr. Sweetman: The Minister's point in making his case was that he has had two different people claiming for the same children's allowance in respect of the same children.
Mr. Lemass: That was one of them.
Mr. Sweetman: That was one of his cases; the difficulty was that, in one, the child is supposed to be normally resident, but in the other case it was based on a question of maintenance. This whole Bill cuts out the maintenance claim. Therefore, so far as that particular example is concerned, it is no example at all in support of the Minister's case. The original Act said that it had to be considered with whom the child normally resides and, as I  take it the situation is that the Minister is taking power under this section to say that “normally resides” does not mean “normally reside”.
Mr. Lemass: He does normally reside.
Mr. Sweetman: The Minister is taking power whether he had intended to take power or not—I am not going to argue on that—to say that normally resides does not mean normally reside.
Mr. Lemass: There is no mention of actual residence on the qualifying date.
Mr. Sweetman: In anticipation of the fact that this House is going to sit until 10 o'clock to-night, I am going to stay in Dublin, but if to-day were a qualifying date for the purpose of children's allowances, I am certain I would be normally resident, to-night, in my home in Kildare. Therefore, the question of where a person is on one particular day does not enter into it at all but it is a question of where the person normally resides. If the Minister wants to say that though I normally reside in Kildare, I am to be deemed as normally residing in Dublin, because I am here in Dublin for one night, then I cannot understand. That is my difficulty.
Mr. Lemass: That is a simple case.
Mr. Sweetman: It seems to me that the real basis behind the Minister's claim is that his argument is that it is purely experimental. My objection on these lines is quite simple. If you give enough room for experiment by administrators you get administrators defining policy.
Mr. Lemass: No.
Mr. Sweetman: The Minister does not agree with me; we will have to agree to differ.
Mr. Lemass: In 90 per cent. of the cases there will be no difficulty. The children will normally reside with the parents in their parents' homes. In the large majority of the remaining cases there will not be much difficulty in  coming a decision as to where the child normally resides, or to the qualification of the claimant, but there will be all sorts of cases where mothers, as Senators may imagine, never thought about their children or much less attempted to maintain them until there was a possibility of 2/6 a week under this Bill.
Mr. Sweetman: If the child is with her and she is hearing the child every day she must think about it.
Mr. Lemass: If the child is residing with her she would be entitled to it but when the child might not be residing with her....
Mr. Sweetman: You are not suggesting that you are going to give her the allowance if the child is not residing at home with her?
Mr. Lemass: Yes, unless it is shown that there has been an abandonment of the child by the mother or that there is, in fact, no normal and natural link between them.
Mr. Sweetman: Was the point made by the Minister that where a mother did not think at all about her child that he is going to make that mother entitled to children's allowances? Have I misunderstood?
Mr. Lemass: The point I am making is that the rules which will have to be prescribed would not be as simple as was suggested by the Senator's illustration. They would have to be more complicated rules than that to deal with the types of cases that would arise.
Mr. Sweetman: The rule would be to decide on evidence what normal residence means. The Minister is taking power to provide that normal residence does not mean normal residence. That is why I object to it.
Mr. Baxter: And complicated the position by so doing.
Mr. Hayes: I understand some of the difficulties that have arisen. I have been in touch with a number of cases, similar to the one the Minister mentioned, where some members of a large family reside in the country with a  grandmother or an aunt, sometimes with people in poor circumstances, and the child is still maintained by the parent. The Minister wants to protect that. He is under a misconception if he thinks I object to his making rules. I do not object to his making rules to deal with complicated circumstances which arise in legislation of this nature. Rules must be made, but they must be made, only in certain circumstances, and with certain limitations. My objection to this particular paragraph is that the Minister is proposing to do a very wide thing in the Bill, as it stands, and is making no provision that the Oireachtas shall have any control over what he is doing. If, for example, he were to put into this section a definition of normal residence and then take power to make rules and submit them as my amendment No. 4 suggests, then I would not have any objection. My objection at present is not a theoretical one. The Minister used the word theoretical over and over again.
There is no more dangerous word than the word “practical”. If a man takes my watch from me he does a very practical thing and he may regard my claim to the ownership of the watch as pure theory. No word is more bandied about here than the word “theory”. People who object to this kind of legislation are people who believe in law. If you like, law is theory. The thing that brings us here to make laws is theory, but it has a very practical side to it. There is no use in saying that the people who object to certain modern tendencies are simply theorists and take no account of practical life. That is not so. I understand the Minister's difficulty. There is a real difficulty in determining whether a particular parent is entitled to children's allowance on the head of his child, because the child is not resident with him. What the Minister is doing here is giving power to himself to decide that the child is normally resident, where no ordinary person would deem the child to be so normally resident. He may be doing that for a very practical purpose, like the man who took my watch, but he should take some steps to remedy the situation  without handing his right to make regulations over to outside officers. I think if we could combine the two things that, possibly, on further consideration we could get over it—the question of normal residence combined with the power to make rules. If that should prove workable it would avoid the necessity for an amending Bill later. He is taking an extraordinary power at present, a power which in the end means that he will make a rule which defines that the young Murphys are normally resident with their father and the young Kellys are not, in particular cases.
Professor Fearon: I should like to know from the Minister what happens all these rules. There are bound to be a great many collected during the time the Act is in operation. Will they merely accumulate as the years pass and be filed for reference by the staff? The Minister referred to the possibility of freezing these rules at this stage. I should like to know what is going to happen when they thaw? If these rules are not approved of by some future Minister will they be revised? Is it not possible also that the present Minister may change his mind and find it necessary to change the rules?
That is a question which has been running through my mind. I presume the underlying intention is that from the cases which present problems, various principles will be collected which will form a basis of reference for future administrators. The difficulty that I see with this enormous collection of rules is that a particular Minister at a particular time may make a rule that completely alters a previous set of rules. Unless we can devise some method of getting first principles from these accumulated rules, we shall have an extremely bewildering and largely irrelevant mass of opinion on the subject. I wonder would it be possible for somebody to make a decision when doubt arises as to where a child is normally resident?
Mr. Lemass: I did not contemplate, and do not now contemplate, rules as detailed as has been suggested. I think it will be possible to get ordinary  simple rules which will lay down clear principles such as those that were attempted under the relevant section of the Principal Act, subject only to modification as the need for modification arises from the reports of the deciding officers. I do not think that these rules will be so numerous as Senators appear to think, or that their number will be continuously added to. The change will take the form of an amendment of the rules rather than an addition to their number.
Mr. P.J. O'Reilly: I am afraid that there is a certain amount of doubt as to the intention of the Minister in putting forward this new proposal. I should like the Minister to say whether he is going to ensure in future that only the person with whom the child normally resides will get the allowance of 2/6.
Mr. Lemass: The person with whom the child normally resides.
Mr. P.J. O'Reilly: So that the centre of gravity is, as it were, being transferred from the person, who maintains, under the Principal Act, to the person with whom the child resides, under this new amendment?
Mr. Lemass: I certainly contemplate that the rules will provide that the child will be deemed to be normally resident with his parents where the parents are living and are the legal custodians.
Mr. P.J. O'Reilly: One reply of the Minister seemed to indicate a rather extraordinary position. A child may be resident with a grandparent or some relative, but yet it may be deemed to be resident with the parents. That parent may be a rather careless or indifferent parent, but still he will get the allowance.
Mr. Lemass: The Senator may not be aware that there is another provision in the Principal Act which is being retained which gives the Minister certain discretion. Where he has reason to believe that a person is not a suitable guardian, that person will not get the allowance.
Mr. P.J. O'Reilly: Provided there is some such provision I am satisfied, but what has been stated here seems to reveal a curious position, that a very indifferent parent might get the allowance while a grandparent or some relative might be really supporting the child. I should imagine there must be thousands of cases of that kind where the parent does not discharge his responsibilities in regard to the support of the child and still gets the allowance. What provision is being made for that particular situation? It might be that the parent was spending the money in an improper way, and why should the State pass over money to people who will spend it in an improper way?
The Seanad divided: Tá, 18; Níl, 19.
|Baxter, Patrick F.
Counihan, John J.
Duffy, Luke J.
Fearon, William R.
Keane, Sir John.
McGee, James T.
Madden, David J.
Moore, T.C. Kingsmill.
O'Reilly, Patrick John.
Ruane, Seán T.
|Clarkin, Andrew S.
Farnan, Robert P.
Keane, John Thomas.
O Buachalla, Liam.
O'Dea, Louis E.
O Siochfhradha, Pádraig.
Nic Phiarais, Maighréad M.
Ryan, Michael J.
Tellers:—Tá: Senators Crosbie and Sweetman; Níl: Senators Clarkin and S. O'Donovan.
 Amendment negatived.
Section 5 agreed to.
Mr. M. Hayes: I move amendment No. 4:—
Before Section 6 to insert a new section as follows:—
Every Order made under Section 2 and every rule made under Section 5 of this Act and every regulation made under Section 20 of the Act of 1944 shall be laid before each House of the Oireachtas as soon as may be after it is made or after the date of the passing of this Act whichever shall be the later and if a resolution is passed by either House of the Oireachtas within the next subsequent twenty-one days on which that House has sat after the Order, rule or regulation is laid before it annulling the Order, rule or regulation the Order, rule or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under the Order, rule or regulation.
This amendment is a very familiar one, and I do not propose to take up much time in discussing it. The Minister is taking power in Section 2 to fix certain dates. He is also taking power, in other sections, particularly in Section 5, to make certain rules and regulations. My amendment is directed towards providing that these regulations shall be laid on the Table of each House, and shall be capable of being annulled by a Resolution of either House. The Minister, in this particular instance, would not, I think, lose anything by agreeing to the amendment, because a section in the form of the proposed new section has been inserted in a number of Bills which have gone through the Oireachtas. I think it has been the experience, since 1922, that there has been no abuse of the power granted to each House under a section of this particular kind. It is only in a rare case that use is made of it. Its purpose is to keep the Oireachtas informed of what is happening. It does allow discussion to take place in either House, to have an explanation by a  Minister on the matter at issue, and, if necessary, a decision on it by either House. I think the Minister would be well advised to agree to the amendment. My objection is not to the giving of power to a Minister to make regulations, but I think that in this Bill very considerable power is being taken by the Minister, power of a very wide scope. While flexibility is necessary in matters of this kind, there ought to be some limits to it as well as the power to check. I am therefore proposing that the rules made should be laid on the Table of the House, and, that these should be capable of annulment.
Mr. Lemass: I do not wish to start a discussion on a subject which is near to the hearts of many Senators: the practice of including a provision in Bills empowering Ministers to complete the details of legislative schemes by Ministerial Orders which will have the force of law. I think it is desirable, however, that we should make some attempt to determine the principles and the considerations which would apply to proposals of this kind, now put forward by Senator Hayes: proposals that Orders, made by a Minister under statutory power, should be subject to annulment by motion in the Dáil or Seanad. I think it is true to say that the device of empowering Ministers to complete the details of administrative schemes by Order became necessary because of the ineffectiveness of the Legislature in dealing with these matters of administrative detail. That ineffectiveness is not due to any fault in the Parliamentary system, or any fault in the representatives who are the members of the legislating bodies. It is due to the fact that a system of majority decision is not suited to the determination of administrative detail, and that a particular scheme of administration—a particular method of putting into effect the principles of which the Legislature has approved—must be accepted and put into force as a unit.
Senator Sweetman, in the course of his discussion on the previous amendment, mentioned the possibility of this Bill being framed as a three-line measure, merely providing that children's  allowances at the rate of 2/6 a week should be paid in certain circumstances and that the Minister could make all arrangements in connection therewith. That is possible, but I do not think it is desirable. I think that where the Legislature can give definite directions which are necessary in order to delimit the character or scope of proposals, such direction should be given in the legislation. May I remind the Senator, however, that in that regard our practice is more conservative than the practice in other countries. For instance, in the case of the National Insurance Bill, introduced recently in the British House of Commons, it is proposed to give the Chancellor of the Exchequer and other Ministers power, by order, even to vary the benefits payable or the contributions collectible. In that connection, I am sorry to say that I notice that Senator Kyle and other members of the Labour Party seem to be getting so far out of line with their colleagues in England as to be moving in the other direction.
Mr. Baxter: They are different people.
Mr. Hayes: The Minister's heart bleeds for the Labour Party.
Mr. Lemass: At any rate, I am very sorry to see them departing so far from the complete line of orthodoxy. I suppose, however, that these Senators will make their explanation to the central authority of the brotherhood at some stage, and I hope that some of those visiting people will be able to give them a line on what is happening. However, I want to lay down this principle here, that where Parliament can define the limits within which the Administration should act, that should be done, and we have always attempted to do so.
The problem, however, is different where the Legislature is unable to determine the facts, either present or future, which the administrator must take into account, or where it is not agreed on the facts, and where it is necessary to allow a degree of discretion to the person responsible for the administration of the measure. In such circumstances, if necessary or desirable legislation is not to be unduly delayed or abandoned altogether, the device of  authorising the administrator—the person responsible for the administration of the measure—to carry through the scheme by the making of Orders which would have the force of law is, in my view, desirable and is also fully in accordance with sound, democratic principles.
In almost every case, however, where in a measure of this kind it is proposed to give the Minister power to determine by Order the manner in which the administration of the measure concerned is to be carried out, we get proposals of the kind which Senator Hayes is now moving: a proposal that the power should be given to the administrator, with strings attached to it, so that, no matter what he determines, it may be annulled, not only in its entirety, but in a piece-meal kind of way. Now, I do not think that power to annul such an Order should be given to the Oireachtas, nor do I think it should be asked for by the Oireachtas, except where it can be shown that the power to make Orders can be exercised in a manner which would involve discrimination as between individuals. There are many different kinds of cases where power to make such Orders is given.
In the majority of cases, the idea behind the giving of such powers is to enable the Minister concerned to complete the scheme and carry it through and to give effect to the intentions of the Legislature, recognising the limitations on the ability of the Legislature in that regard. There are other cases where it is necessary to give the person administering the scheme a certain amount of discretion, where a certain power of discrimination must be allowed. I shall be dealing with a similar case in the next Bill that will come before us. I have put into that Bill sub-sections providing for possible annulment in relation to sections where the Minister was being given power, at his discretion, to remove members of a harbour authority and substitute commissioners for them in cases where, in his opinion, having received a report from competent authorities, the harbour authority were not doing their duty. In such cases, where the element of discretion comes in strongly, and where the Minister might be influenced by personal prejudices,  I think the power to annul should be given, but where the question is one of making general rules applicable to general situations, I think the power to make Orders should be given absolutely. So long as it is a matter of general circumstances and general considerations and the Orders apply equally to all the people concerned, there is nothing contradictory to democratic principles or the Rule of Law in adopting such a device, and it operates to preserve the authority of the Minister in that sphere where it is important that his authority should not be in doubt.
Now, we find that Senator Hayes wants to give power to annul the Minister's Orders in three different cases. The first case is in regard to the dates to be laid down by the Minister on which certain provisions should come into operation. I do not think that should be done, nor do I think that it should be asked for by the Oireachtas. It is quite clear that the Minister cannot use that power to give effect to personal prejudices or predilections, of which the Seanad may not be aware. Whatever rules the Minister may make will apply, in general, to all circumstances and to all individuals, but if the Minister decides that a Bill should come into operation on a certain date, he must have documents printed, arrangements made, and so on, in relation to a particular date, and he cannot do that if there is a possibility that the Order may be annulled in the meantime. If that were the case, he would have to wait until the end of the prescribed period, whether the Seanad desired it or not, before he could sanction the printing and other arrangements, possibly involving heavy expenditure. The same thing applies in respect of Section 20 of the Principal Act. Again, it is a matter of whether the Minister can make general Orders which are applicable to general circumstances.
There can, in that case, be no possibility of discriminating between individuals. The only section for which the Senator can make a case is No. 5. In that instance, I have to admit the possibility that the Minister could use  his powers so as to discriminate between individuals. I have made it clear that I do not intend that separate rules should be made to cover every description and type of case.
It is intended that there should be general rules, applicable in general circumstances, to all persons. As Senators will realise, it is necessary to have the powers of the Minister stated widely. If the Minister abuses his powers, the Oireachtas has its remedy. As I have said, we are anxious to get away from rigidity in this matter. If we provide for the possible annulment of these rules the tendency will be to maintain them unchanged for a longer period than might be desirable if the Minister had power to make them without tabling them.
Where Orders of that type must be submitted to the Oireachtas the tendency is to minimise the changes. It is not desired to come to the Oireachtas frequently with proposals to alter them. If I am pressed, I could not resist the suggestion contained in the amendment in relation to Section 5 but I would regard it as undesirable, because I think it would introduce an element of rigidity which the House would not wish. But, if it is pressed, I will accept it. However, I cannot agree with the proposal in relation to Section 2 of this Bill and of Section 20 of the Principal Act.
Mr. Kingsmill Moore: I have listened with a great deal of surprise to the case made by the Minister. He began by putting his case in a very broad and arguable fashion, and in very general terms. From that he passed for a few minutes to distribute hand-grenades in the direction of the Labour Party. Then the Minister put forward an argument which makes me wonder whether I heard it aright or not. The Minister seemed to me to say that only where rules or Orders made by him or under his direction, may be used for the purpose of discriminating adversely against individuals they should be brought before the House for the purpose of approval or annulment.
At the beginning, I would be prepared to assume that discrimination of  that type was a thing that would not happen, and that the Oireachtas should not approach Orders made under the Bill on the assumption that it must scrutinise them because the Minister's officials would be likely to abuse their powers in that regard. But, the Minister went on to make a statement which I find it more difficult to follow. In effect his statement appeared to be that he claimed the right to make mistakes, and that these mistakes should not be subject to review by the Oireachtas.
He said that these proposed regulations will deal with everybody indiscriminately, and I took him to mean that therefore the House should have no right to say or examine any of his particular Orders. We can all conceive that the Minister's Department might make stupid rules, but stupid rules are the type of rules which the House should consider, and, if necessary, amend.
I am making those remarks on the Minister's statement, so that there should be no misconceptions on the subject. We all look forward to the day when the Minister and the Government will come forward with some proposition, with regard to Select Committees or otherwise, by which there can be more extensive provision for supervision of regulations that are not contained in the statutes themselves. The House should be made aware of what the Minister is doing under this Bill and of the procedure of delegated legislation. We should know that. I feel that in nine cases out of ten we will not find that there is anything wrong. Personally, I will be surprised if you find anything wrong even in the tenth. But, I feel that no Order should be valid until a resolution has been passed in both Houses approving of it. That, to my mind, would be a most desirable provision. When we get the Orders of the Day, we find usually a list of Statutory Rules and Orders which have been made by various Ministers. Some of us may not have time even to read the full list, much less to examine the Orders which have been made.
Mr. Baxter: Hear, hear.
Mr. Kingsmill Moore: Occasionally, we may find time to do it, but I would prefer that Orders of the important type to which the Minister refers should be circulated to members of the House and should not come into force until resolutions are passed declaring that they should be operative. Those resolutions might not take up ten minutes of the time of the House, but if there was not anything wrong, anything cardinally wrong, but worthy of consideration; members of the House would have an opportunity of debating it. It may be said that these remarks are not germane to the discussion——
Mr. Hayes: They are every bit as germane as the Minister's remarks.
Mr. Kingsmill Moore: In fact, he did deal in general terms. He could have dealt with it more particularly when he spoke.
Mr. Baxter: I fail completely to understand opposition to such an amendment as this. I think it contains a principle which can be accepted by every Party in the State. There are no differences of opinion with regard to the measure we are discussing now. There are differences with regard to the implementation of certain sub-sections. When the Minister suggested that the acceptance of this amendment would make for further rigidity in the administration of the principal measure, I think he was not really stating the fact. Nothing would be more exasperating to the majority in this House or the other House than to find a member coming forward, without good and sufficient reason, with a proposal to annul an Order which the Minister had made. I do not think that a member of either House would have the hardihood to come before it with such a proposition without good reason. The patience of the House would not stand such a proceeding for five minutes.
Professor Magennis: It is a very patient House.
Mr. Baxter: Sometimes. Assuming that the Minister accepted this amendment and that an Order was laid on the Table for 21 days, how far would that throw the working of the Act out of gear? I do not think that there is any substance in the Minister's argument on  that point. The atmosphere the Minister creates in a matter such as this is that Senators, like Senator Hayes and Senator Sweetman, who argue from a particular angle with the aim of trying to get the Act passed in such form as will enable the Minister to do what the Oireachtas requires, while preserving the rights of the Oireachtas, cannot be honest or well meaning. I think that that is the wrong approach.
Ministers would get far more cooperation from every side of both Houses if they were prepared to recognise that members do not want to be contentious and that they will not move to annul Ministerial Orders unless there is good and sufficient reason for so doing. The Minister would create a much better atmosphere by accepting a reasonable proposition such as this which would not prevent the flexible administration of the Act.
Mr. Ryan: There ought not to be any difficulty in adjusting the position as between Senator Hayes and the Minister. I am sure the Minister does not claim to be entitled to make Orders, rules and regulations under the Act without reference to the Oireachtas. I am sure he does not claim to be entitled to get from the Oireachtas a blank cheque in respect of the making of rules and regulations. On the other hand, he is quite entitled to say that the restrictions imposed by this amendment may make the Bill unworkable in certain respects. I think that the Minister does not claim to be entitled to legislate. Therefore, he will not, I take it, object to this form of section in a case in which it is reasonably applicable. The Minister has pointed out that the Orders under Section 2 deal with the coming into operation of the Act. He has made the case that that is a matter more for himself than for the Oireachtas. The Oireachtas is not, I take it, directly concerned as to the date on which the Act comes into operation but it empowers the Minister, by Order, to fix a day for its coming into operation. Why does it do that? Because an Act cannot come into force without certain preliminaries and a certain amount of preparation. The Minister is the  person best able to judge the date on which it should come into operation.
Mr. Hayes: There is a mistake in the amendment—my mistake. It should read “every Order made under Section 3”. I did not intend the amendment to apply to Section 2.
Mr. Ryan: Even if it did, the same argument would apply. The Minister would be in the best position to decide the appropriate qualifying dates. The amendment also provides that regulations made under Section 20 of the Act of 1944 should be laid before the Oireachtas. I am sure those regulations have been made already. To have them laid before the Oireachtas now would serve no useful purpose. It is possible that, in future, the Minister may make regulations under Section 20 of the 1944 Act but those regulations would relate, more or less, to procedure and not to principle. Therefore, I think that Senator Hayes should accept the offer of the Minister and limit his amendment to the rules made under Section 5 of the Bill. At this stage, I think that no Minister would seriously contend that he should have a free hand in the making of the rules.
A short time ago, there was a debate in this House on a motion by Senator Duffy in connection with the operation of the Henry VIII clause in certain Bills—the usual clause which gives a Minister power to modify the provisions of an Act. It is called the Henry VIII clause because the Tudor Parliament passed an Act empowering Henry VIII to legislate by proclamation. I am sure that no Minister would like to be the successor in title to King Henry VIII as legislator by proclamation. On that occasion, the Taoiseach said that it was a matter for the Oireachtas to see that its control was preserved so far as possible. Therefore, the question is: what control the Oireachtas should endeavour to retain. In this case, I think the necessary control would be in respect of regulations made under Section 5. I suggest that Senator Hayes should withdraw his amendment on an undertaking from the Minister that he will accept this amendment in respect of Section 5.
Mr. Duffy: It is desirable that we should make clear exactly what we are seeking. Senator Ryan has just referred to a debate some months ago on a Motion which I tabled asking for certain returns as to the acts of certain Ministers under enabling sections of various statutes—not for the purpose of having them only, but for the purpose of seeing them, so that the House and the public might know what was being done under these statutes. It seems to me the only purpose of the clause that is suggested here in this amendment is to ensure that if the Minister makes an Order affecting the conditions of life of a section of the community that there should be power, first to review it, and secondly, to annul it if the House thought fit. There does not seem to me to be much force in making the proposal that an Order should be tabled, with power of annulment, with which everybody in the House will agree when it is made, because under Section 2 of this Bill what is enacted is that the Act should come into operation, on such a day or date, as may be fixed therefor, by an Order or Orders of the Minister. The purpose of making these Orders is to simplify the regulations in relation to the payment of children's allowances and if the Minister makes an Order, to-morrow, for the purpose of making it easier for the ordinary applicant to secure the allowances to which he is entitled under the Principal Act, nobody in this House will move to have it annulled. What is the purpose in asking the Minister to table an Order, with power of annulment in 21 days, if we all know in advance that none of us is going to move for the annulment?
I think what the Minister has said himself in regard to Section 5 should be taken into account, because there is something with which the House might disagree, and I think it is reasonable that Orders or regulations made under Section 5 should be tabled, so that if members of the House desire, the matter might be raised on a formal motion for annulment and might, if necessary, be pressed to a division so that the annulment might be secured. Generally, on this question, the view I have taken is that we ought to seek the power of  annulment only where principles are concerned and we ought not to seek the power of annulment merely where an Order is being made for the purpose of clarifying something or of implementing something within the scope of the Bill itself. We had a discussion on this, it will be recalled, during the Transport Bill. I, personally, felt that certain regulations which the Minister is empowered to make might be the subject of a review, but on having the matter discussed here, I came to the conclusion the Minister was right and that there was no point whatever in having these Orders tabled for the purpose of annulment. Similarly in regard to the Harbours Bill. If I might now digress for a moment, there is power taken by the Minister to make an Order for the purpose of adapting certain Acts of Parliament, certain statutory instruments and what I will endeavour to do is to put down an amendment to that section asking that the Order be tabled without power of annulment, because I do not think it would be reasonable or desirable that we should have the power of annulment, but we should certainly see what is being done under the Bill and the local authorities and harbour authorities should know, too, what is being done in relation to the Bill. I do not want to go into the matter further, at this stage, because the Minister is now in a rather entangled position between the glorious and impious, of immortal memory, King Henry VIII, and the Fabian Socialist with whom he got entangled recently. I do not want to make the entanglement any greater, other than to say this, that if the British Socialists are making a mistake in giving too much power to the Ministers, taking them away from the authority of Parliament, I hope we will not follow the example, even led by the Socialist Minister for Industry and Commerce.
Mr. Lemass: I just want, perhaps, to clear up some misunderstandings that may have been created by what I said. When the Seanad is passing legislation and it is necessary to provide for matters of administration, as well as for principles, in order to give effect  to a particular scheme it can do one of four things. It can insist that these administrative details are contained in the Bill itself. That used to be the practice in the past. In more leisurely days we had schedules to Bills, even prescribing the form in which application had to be made for various concessions and matters of that kind; or, as Senator Kingsmill Moore suggests, it can give power to prescribe these things by Order, subject to the positive assent of the Oireachtas. It can give power to do these things by Order, with power of annulment by the Oireachtas, or it can give power to do these things by Order. I think very few would suggest in these more hectic days that we have got the time to discuss in detail and decide by majority vote all the details of an administrative scheme such as the children's allowances scheme, or put into the legislation itself provisions prescribing the type of forms that will be used in making applications, the manner in which the allowances will be paid, the procedure that must be adopted by the Post Office when a voucher is presented, and all these other matters of administration which are now dealt with by Ministerial Order. We come, therefore, to the question of giving the power to deal with these matters by Order, subject to the positive approval of the Legislature, or subject to this power of annulment. I think positive approval would impose a burden on the time of the House which we cannot afford. Legislation during the years of the emergency was not very heavy, and the Dáil and Seanad had time to discuss at leisure the various Bills that came along, but it is extremely probable that in the next few years we will get back to our pre-war experience of a very heavy legislative programme which will fully occupy the time of the Dáil and Seanad, and I do not think they can afford to divert their attention to these matters of administrative detail. I am not going so far as Senator Duffy's friend, Professor Lasky, who in a recent publication urged that Parliament should only pass what he described as “skeleton Bills”, Bills which determine principle and leave all the details to be determined by the  Executive. My suggestion is that, instead of taking power to prescribe details by Order, subject to positive confirmation by the Houses of the Oireachtas, we should have power to deal with these things by Order, subject to annulment in certain circumstances.
I think it is undesirable that we should give to the Houses of the Oireachtas the power of annulment in all circumstances. I mentioned a particular case where it would, in fact, mean holding up the implementation of a measure for some time—and may I point out to Senator Baxter that the period within which a motion can be tabled is not 21 days but within 21 sitting days, which may mean a much longer period. Where should we give power to make an Order subject to the possibility of annulment? I suggested here—I think Senator Kingsmill Moore misunderstood me—that the power of annulment should be retained where the Minister can use the Order to discriminate between individuals. In various sections of the Bill we prescribe matters in respect to which the Minister may make Orders. Where these Orders are necessarily of a general character and of general application, the Oireachtas must rely on the Minister doing that job fully. I admit, as Senator Kingsmill Moore suggested, that the Minister may make foolish Orders, but you cannot guard against that by any legislative device.
Mr. Duffy: On the question of generality, I should like to ask the Minister would he agree that the power of annuulment should lie, in the case of an Order like the Employment Period Order?
Mr. Lemass: I am not going to bring in the question of emergency legislation.
Mr. Duffy: The Employment Period Order was not emergency legislation. It was an Order which deprived certain people of unemployment assistance at certain seasons.
Mr. Lemass: That may be arguable, although, I think, in every case, the House having agreed on the principles of having such an administrative  device, should leave the application of it to the Executive. So long as the Government acts intelligently and in accordance with the wishes of the majority in each House, it will of course be able to get its Orders implemented or to defeat an annulment motion if such motions are moved, but the real advantage of the power of annulment, in circumstances where the Government is a Government with sufficient power, is the possibility of drawing attention to the manner in which these powers are being used. Where the Minister has abolished a local authority, replaced a harbour board by a commissioner, or altered a general scheme of administration to the detriment of individuals, even though he may be fully justified in doing so, I think there should be in the Houses of the Oireachtas power to draw specific attention to that matter by an annulment Order.
I am not going to admit, as Senator Kingsmill Moore thought I was admitting, that these powers may be abused, but it is because, where the Orders can be used against individuals, the possibility of abuse arises that I think the power of annulment should be retained. Where there is no such possibility of discrimination, where it is a matter of giving effect to the intention of the Oireachtas as contained in specific legislation, the power of annulment should not be there. Let me be quite clear that it may be necessary to give the Minister power to discriminate because it is not possible in the Dáil or the Seanad to foresee the circumstances that will arise in every case. Unless we delay matters until we know all the facts, it may not be possible. We must lay down general principles that will apply, and give to some individual the task of determining the circumstances in which these principles will be operated or suspended in their operation because of circumstances that may arise. Where that element of discrimination is possible I think there should be power of annulment. Where the intention is merely to facilitate administration, to avoid imposing upon the Oireachtas the obligation of dealing with details of administration or to permit of a scheme being amended or altered without the  necessity of introducing fresh legislation, then I think that the power of the Minister to make these regulations should be absolute and free from doubt.
I am putting forward that argument because I would like the House to understand the principles on which I have, in framing measures, inserted a provision similar to this or failed to insert it. In the Harbours Bill there are some sections which contain a provision of this kind and some which do not, but that is the basis on which the matter is decided. As regards Section 3, the Senator said it referred——
Mr. Hayes: To categories rather than to dates.
Mr. Lemass: I merely want to say that I hope the first qualifying day under this Bill will be the 1st of October and that every subsequent qualifying date will be at intervals of two months. The only question is whether we can bring the scheme into operation on the 1st of October but I think the date will be the 1st of October.
Mr. Hayes: In spite of the grenades we are nearly in agreement. I like listening to the Minister. He is an extremely good debater. We are discussing rules, and the reason the Minister is a good debater is that he observes no rules and he observes no principles. He called me on a former occasion an octogenarian, a judge, a theorist, and a Victorian. He has stated to-night that the Labour Party are supporting the Conservatives. I do not know whether anybody noticed that when he talked about the British Government he said Labour Government but when he was “walloping” Senator Duffy, he talked about a visiting “Socialist.” The Minister is an expert at labels.
Mr. Kyle: They are synonymous terms.
Mr. Hayes: They are not synonymous terms. The word “Socialist” is a much more objectionable word in Dublin than the word “Labour”. Senator Kyle does not know his stuff as well as the Minister and myself. There was a story here long ago about a very silent member of Dáil Eireann who was speaking to the famous W.B. Yeats who was then a member of the  Seanad. After Yeats had delivered himself of a long flowing period, this member said to him: “Senator, you took the words out of my mouth.” Senator Kingsmill Moore took the words out of my mouth. I have learned not to be astonished at anything, but when the Minister puts forward the theory that when he has power to discriminate against particular classes of people, he should be subject to annulment but that when he has general power he should not, he simply staggers me. If he took power in an Act to discriminate against professors in University College, Dublin, he appears to argue that the House should be able to annul regulations made under such a provision.
If, however, he had power under an Act to shoot all professors he thinks no one should be able to interfere with him because he was exercising powers of a general character. But let us come down to the actual facts. I rather agree with the Minister that a positive approval of regulations would be extremely hampering and should be resorted to very rarely. I agree also that the rules made under Section 2 of the Bill should not be subject to annulment. I was thinking of Section 3 under which the Minister can change a regional classification into a vocational classification. That is a very important change. The powers he takes under Section 5 are very sweeping and I understand from him that in consideration of that fact he will bring in an amendment to provide that regulations made under Section 5 shall be tabled and be subject to annulment. I agree with that, if the House agrees, and I ask leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Sitting suspended at 6.10 p.m. and resumed at 7.15 p.m.
Mr. Duffy: I move amendment No. 5:—
In sub-section (1), page 3, to delete lines 30 to 33 inclusive and substitute instead the following words: “as seems proper having regard to the provisions of Section 5 of this Act”.
 Amendments Nos. 5, 6, 7 and 8, which appear on the Order Paper in my name to Section 6, can, I submit, be taken together. Anything that I have to say on them I propose to say now on amendment No. 5.
An Cathaoirleach: Very well, Senator.
Mr. Duffy: It will be observed that in a number of sections and paragraphs to Section 6, the Minister is taking power to decide certain matters as he thinks fit, according to his discretion, and so forth. I think that, in general, that is an undesirable provision to insert in a Bill, particularly in relation to matters of this kind where it is pretty obvious the Minister, personally, cannot decide all these issues. I am accepting the view that the Minister will accept responsibility for the decisions taken in a case as to whether a particular child was living with a particular person or not; but I want to suggest that it would be a physical impossibility for the Minister to have all the cases which may arise examined individually by himself, having regard to his other responsibilities, and to the number of other Acts which he is required to administer, while at the same time devoting the requisite amount of time to reading the speeches and works of Professor Harold Laski. It seems to me that what must inevitably happen is that some person in the Minister's Department will reach the decision. I do not think that is a desirable thing.
The Minister himself, speaking on an earlier amendment, referred to certain things that were done under the Unemployment Insurance Act. That reminds me that, under that Act, you have a deciding body, outside the Department altogether, in regard to certain matters. That body is independent of the Minister. I refer to the Court of Referees, which has an independent chairman and two other members: one representing employers' interests, and the other the workers' interests. The Court of Referees determines, as between the Minister's officials and the claimant, whether or not a claim made shall be allowed. Under the Health Insurance Acts you have a somewhat similar principle  in operation, whereby an insured person who is dissatisfied with the decision of an approved society has the right to go to arbitration. The arbitrator is an independent person. Indeed, there may be three persons, one of whom would be selected by the insured person. In the event of the insured person being dissatisfied with the verdict of the arbitrator or arbitrators, he has the right of appeal to the Minister, although when the Act was originally drafted the appeal was to the Insurance Commissioners.
This Bill, as well as some other Acts passed recently, takes a different line. We find in this Bill the same idea as that which is to be found in the Widows' and Orphans' Pensions Act— the Minister deciding according to his discretion what shall happen in regard to claims to benefit. I think that is wrong. I am not suggesting that my amendments provide a satisfactory alternative to what is in the Bill. They were not put down for that purpose but rather with the idea of drawing attention to what I conceive to be a bad principle, and in the hope that the Minister himself would consider whether it is not possible to find an alternative method of deciding the issues which arise in Section 6 of this Bill.
The matter raised here has been discussed more or less on previous amendments. The same idea was present to the mind of Senator Hayes and Senator Sweetman when they proposed their amendments. I do not propose to go over that ground again, beyond saying that I think, notwithstanding what the Minister has said, that it is an undesirable development to write into our legislation provisions of the kind that we find in Section 6: provisions entitling the Minister, in his discretion, to decide to whom payment under a statutory enactment shall be made. I would urge very strongly that some deciding authority, independent of the Government Department immediately concerned, should be set up to decide matters of this kind. I do not intend to pursue the matter further at this stage, but I again urge strongly that the point which arises in these four  amendments should be seriously considered by the House.
Mr. Lemass: The purpose of these amendments, in so far as I understand them, is to ensure that the decisions taken in the types of cases contemplated in the section will be given by some person other than the Minister. I noticed, however, that, in the beginning of his remarks, Senator Duffy said that he assumed that the Minister would continue to have responsibility; but, quite clearly, the purpose of his amendments is to deprive the Minister of his responsibility and to ensure that the decisions taken will be taken by the deciding officers.
Mr. Duffy: No.
Mr. Lemass: That is the effect of the amendments.
Mr. Duffy: I said that the amendments had not been drawn to achieve the purpose that I had in view, but I did express the view that the decision should be arrived at by somebody outside the Department administering the Act.
Mr. Lemass: That would be the deciding officer. I think that the Senator is still adhering to his original intention which appeared in his amendments, namely, to give the responsibility of making the decision to the deciding officer. There is a case to be made for that, but it must be clear that, if that course is adopted, the Minister will not be responsible, and that if some Deputy in the Dáil asks why was a particular decision taken, the Minister can only reply: “That was the decision of the deciding officer”, and he can give no further explanation concerning it. The reason why the Bill was framed in a particular manner was to give the Minister responsibility, and to make him accountable for the decisions taken.
I do not think it altogether correct to say that the Minister for Industry and Commerce would have so many other concerns that he would not give personal attention to matters of this kind. At the beginning of the administration of the Act he would require to do so. In the course of time, a number of decisions would have been taken  which would guide further cases, and that has been the procedure in connection with the Unemployment Insurance Acts to which Senator Duffy refers. The reference I made to those Acts earlier related to provisions other than those in which the Court of Referees appears. Under those Acts the Minister decides on the question of insurability: whether a particular type of occupation is, in fact, insurable under the Act, and the point I was making in that connection was that cases of that kind are still arising; although, of course, arising much less frequently now than when the Act was beginning to operate, because, over all these years, decisions have been given which, in fact, govern all such cases, and that, as a matter of fact, is what will happen in this case also. The Minister will have to give a decision; he will have to decide as to whether the course suggested by the deciding officers is the correct one and one which he can defend.
Now, let us examine the cases covered here. The first relates to the case where a child may be qualified in respect of two claims—circumstances may arise in which the same child may be used to support a claim from two different persons. In such a case, the Minister is to be given power to decide on each claim. There can be only one successful claim, and I think that in such a case it is the Minister, and not the deciding officer, who should give the decision, since the Minister may be questioned in the Oireachtas on the matter and will have to defend his decision.
The other cases are similar. One is the case of a qualified person who, before applying for the allowance, dies. In that case, the Minister, at his discretion, may accept the application of some other person in his stead, but before accepting the application the Minister will have to take all relevant circumstances into account. It is quite clear that in cases of that kind it is impossible to lay down hard and fast rules in advance, but again it is a matter for the Minister rather than for the deciding officer. Another case is where a person is qualified and  applies for an allowance, but dies before he is paid the allowance, and, again, the Minister must decide to whom the allowance will be paid. In that case also there must be an element of discretion, and it should be a matter for the Minister rather than for the deciding officer to give a decision. In the final case, the power proposed here is precisely the same as in the original Act, with this difference: that in the original Act, where a person who had been awarded an allowance dies, the Minister could decide to what other person the allowance should be paid, but, in practice it was found that that was too restrictive; and accordingly power is now being given to the Minister to distribute the allowance amongst more than one person. I might give as an example a case that was mentioned in the Dáil when this Bill was going through. That was the case of a family of six children in Drogheda. Both parents had died, and the children were placed in the homes of relatives, two in each of three homes. As the Act stood, I could decide that the children's allowances then current could be paid to only one of the three householders to whom the children had been sent. According to the original Act, that is what I could decide, but the proposal here is that in these circumstances I can give the allowance to one householder or divide it between each of the three households, and that is the only change that is proposed there.
Now, these cases will arise occasionally, but while, no doubt, in the course of time, evidence of similarity in cases will become obvious, at the beginning they will have to be decided on their individual merits, and because of that I think it is the Minister who should have that responsibility. Whether, in fact, he goes into each case personally and arrives at a decision which he personally regards as the most just decision, or whether he relies on the advice of the officers administering the Acts, he will have eventually to defend his decisions in the Oireachtas. If we adopt Senator Duffy's amendment it means that we will leave the decision to some person remote from the Oireachtas who cannot  be questioned. If it were possible to devise some code of rules in advance to deal with such cases, I should be glad to do so, but I doubt whether any such code of rules would be practicable, and therefore, I think that the device suggested in the Bill is better than that suggested by Senator Duffy.
Amendments Nos. 5, 6, 7 and 8, by leave, withdrawn.
Sections 6, 7 and 8 agreed to.
Mr. Duffy: I move amendment No. 9:—
In page 4, line 47, to delete the word “six” and substitute the word “three”.
Section 9 deals with the time limit for prosecutions under Section 12 of the Act of 1944, and provides that notwithstanding anything contained in the Petty Sessions (Ireland) Act, a prosecution may be brought within six months after the date when evidence to sustain the prosecution came to the notice of the Minister. Now, I understand, that the section of the Petty Sessions Act referred to—that is, Section 10—provides that the prosecution must be brought, if it is to succeed, within six months of the date on which the offence is committed. There is, however, a wide departure in this section from the provisions of the Petty Sessions Act, because it enables a prosecution to be brought, not within six months of the date on which the offence was committed, but at any time within six months after the date in which evidence to sustain the prosecution came into the Minister's possession. It seems to me that that is an unreasonable delay. I do not think it is reasonable that the Minister's Department should have six months to deal with the matter after the evidence necessary to sustain the prosecution comes into the Minister's possession. I should say that three months, if it is regarded as a maximum, is not unreasonable, and having regard to the fact that months might elapse between the time the offence is committed and the time when evidence to sustain the prosecution might reach the Department, I think that three months should be sufficient  in which to bring forward the evidence, if it should be brought.
Mr. Ryan: I support Senator Duffy's amendment. I think that when the Minister considers what I have to say he will regard the amendment as reasonable. This section proposes that prosecutions may be brought within six months, notwithstanding the Petty Sessions (Ireland) Act, 1851, when evidence to sustain the prosecution comes to the notice of the Minister. Now, Section 12 of the 1944 Act is based on Section 8 of the Widows' and Orphans' Pensions Act, 1935. In fact, the wording of Section 12 of the Children's Allowances Act of 1944 is practically identical with the wording of the corresponding section of the 1935 Act. By the Widows' and Orphans' Pensions Act of 1937, which amends the 1935 Act, it is provided in Section 24:—
“A prosecution for an offence under Section 58 of the Principal Act may be brought at any time whichever of the following periods latest expires, that is to say:—
(a) three months from the date on which evidence sufficient in the opinion of the Minister to justify a prosecution for the offence comes to his knowledge, or
(b) twelve months after the commission of the offence,
and, for the purposes of paragraph (a) of this section, a certificate purporting to be signed by the Minister as to the date on which such evidence comes to his knowledge shall be conclusive evidence thereof.”
Now, that is a provision which ought to have been followed in this Bill. I cannot see why the three months' provision in the Widows' and Orphans' Pensions Acts should have been changed into six months in this measure. Surely, if evidence comes to the knowledge of the Minister, it does not take him six months to issue a summons against a person liable to be charged.
I hold that three months is quite sufficient for the Minister to make up his mind. Under Section 10 of the Petty Sessions (Ireland) Act, 1851, summonses under the summary jurisdiction  clauses must be brought within six months of the commission of the act complained of. This section enables the Minister to bring prosecutions at any time within six months of the time that knowledge sufficient to sustain the prosecution reaches him.
This evidence may not come in for two years but still the Minister has six months to bring his prosecution. He is empowered by this Bill to issue a certificate under his seal as to the evidence, and for the purpose of Section 12 this certificate shall be conclusive. I do not see why it should take six months for him to decide whether he has sufficient evidence to sustain a prosecution, especially when there was a precedent in the Widows' and Orphans' Pensions Act which ought to be pari passu. I think it is very reasonable.
Mr. O'Dea: I think we ought to be careful about changing words. As the amendment stands, I do not think it can be accepted. Section 10 of the Petty Sessions (Ireland) Act, 1851, provides that a prosecution can be brought within six months of the commission of an offence complained of. But suppose that the Minister discovers an offence the day after it was committed. If you put in three months, he is tied down to three months, or to six months, as the case may be, under the wording of the 1937 Act.
Mr. Lemass: Senator Ryan has mentioned corresponding provisions of the Widows' and Orphans' Pensions Act. That Act has been amended.
Mr. Ryan: That clause was never amended. The time limit for bringing prosecutions as proposed by the 1937 Act remains the same in the 1944 Act.
Mr. Lemass: That may be. As Minister for Industry and Commerce, I am responsible for the Unemployment Insurance Act and the Unemployment Assistance Acts, and there are similar provisions in these Acts which have not been amended. But, let us leave that for the moment. What is a reasonable provision? Most Senators, I think, will agree that attempts may be made to obtain family allowances  by fraud and that it may frequently be a long time before such fraud can be discovered. The practice under the Unemployment Insurance Acts and the Unemployment Assistance Acts is to enable a prosecution to be taken when the evidence to sustain it becomes available. The Minister signs a certificate and the prosecution must be taken within six months. I do not think that is an unreasonable period. It is often difficult to secure all the evidence required for a prosecution and the processes of law do not frequently move with the expedition with which other functions are carried out. I do not think there is any reason for loading the dice in favour of the person committing the fraud.
Assuming that some person has knowingly and deliberately obtained children's allowances to which he was not entitled and has done it so cleverly and skilfully that it is not easy to procure a conviction—when it comes to light—surely six months is not an unreasonably long period in which to prove fraud. The knowledge that some people may have successfully defrauded the Exchequer should convince Senators that it is desirable where fraud is detected that provision should be made to enable a successful prosecution to be taken. I do not think it is altogether unreasonable to allow six months to prepare the case for submission to the court.
The objection to the amendment expressed by Senator O'Dea is an important one and, if it were considered desirable to amend this Bill, the amendment would have to take the form of the section now contained in the Widows' and Orphans' Pensions Act, to which Senator Ryan referred. Having had experience of the administration of the Unemployment Insurance and Unemployment Assistance Acts over a number of years, I know of no case in which it could be said that injustice was done by reason of the corresponding provision in those Acts. I think I can say that the practice is that, as soon as the Minister signs the certificate, the process of the law begins and the case goes to court in the normal time. There is, certainly, no attempt to delay the submission  of the case to the court until the six months' period is nearly up. It is merely to ensure that no person will escape penalty for such a fraud, by reason of the fact that there is delay in bringing the case to court, that the six months' provision is inserted.
Mr. Ryan: In this case, the section provides that the prosecution must be brought within six months after the date when evidence to sustain the prosecution comes to the notice of the Minister. The section then provides that the Minister shall give a certificate as to the date on which evidence to sustain the prosecution came to his notice. He may give that certificate three or four months after the date on which evidence came to his notice. That certificate is merely for the purpose of securing that Section 10 of the Petty Sessions Act, 1851, shall not be raised as a defence in the prosecution. My amendment does not help anybody to defraud the State. The Minister can take a year to collect his evidence. He may then reach a point when he can say: “I have sufficient evidence to sustain a prosecution and am ready to start.”
He does not want six months from the time he has collected all his evidence in which to bring the person to court. Therefore, I say that three months from the date on which he has all the evidence before him should be sufficient to enable him to bring the case to court. In the Widows' and Orphans' Pensions Act, 1937, a different word from the word “sustain” is used. The Act refers to three months from the date on which evidence “sufficient, in the opinion of the Minister, to justify a prosecution” for the offence comes to his knowledge. There, the Minister expresses an opinion. He says that he is of opinion that there is sufficient evidence to “justify” a prosecution. In the case of the certificate, his opinion does not count at all. He gives a certificate that, on such a date, evidence to sustain a prosecution came to his knowledge. I do not know that the word “sustain” is properly used at all, because the court may hold that the evidence is insufficient. I suggest that the Minister should substitute that word by the word “justify” on Report.  The Minister cannot decide beforehand that his evidence is sufficient to “sustain” a prosecution. His case may break down. He may have only a prima facie case. There may be a good defence and the evidence may not be such as to sustain the prosecution.
Mr. Duffy: The Minister seemed to suggest that I was endeavouring to put something into the Bill which would allow a criminal to escape. That is not so. The Minister spoke of bringing people to justice who had been getting benefits improperly and defrauding the State. I do not want to defend or shield those people. I simply want to ensure that the person who is to be charged with an offence will be charged as soon as possible after the offence has been committed, so that his memory will be clear as to what happened. Senator Ryan referred to a possible interval of a couple of years between the commission of the offence and the time at which evidence to sustain a prosecution would come to the notice of the Minister. A further six months is then allowed in which to bring the prosecution. Conceivably, somebody may be charged with an offence two and a half years after it has been committed.
In the main, people charged with offences of this type are not the brightest or most competent people in the world. Oftentimes, they are people who cannot make a good defence. Whatever chance they may have of making a defence, that chance would be greater if the prosecution were brought when the matter was fresh in their memory. I do not think that the Minister is very strong about this particular period, save that he is following the precedent in the Unemployment Insurance and Unemployment Assistance Acts. Seeing that his colleague, the Minister for Local Government, inserted a different provision in the Widows' and Orphans' Pension Act, the matter might be reviewed with a view to seeing whether the section read by Senator Ryan would not be more satisfactory than the section in the Bill. Senator O'Dea made the point that, if evidence were to come to the notice of the Minister 24 hours after the commission of the offence, the six  months permitted by the Petty Sessions Act, need not necessarily run. Senator O'Dea overlooked the very important fact that the period in this section runs from the date on which the Minister gives the certificate—not from the date on which the offence is committed and not from the date on which evidence is given to the Minister.
Mr. O'Dea: Yes, but the Minister must give the certificate on the day on which he discovers the evidence. He must sign the certificate on that date.
Mr. Duffy: That is not in the Bill.
Mr. O'Dea: It would not do for the Minister to give a certificate three months after he discovered that there was sufficient evidence to sustain a prosecution. If he did that, it would be a fraud.
Mr. Duffy: Let us assume that somebody in Donegal or Mayo is alleged to have received a children's allowance to which he was not entitled. That matter is reported to the Minister by an official or by a good neighbour. The Minister cannot regard that as evidence. He must have the allegation investigated and it may take him two or three months to have an investigation carried out to satisfy him that there is prima facie evidence on which to proceed.
Mr. Lemass: I seriously think that the period of three months may be too short——
Mr. Duffy: After the signing of the certificate.
Mr. Lemass: Yes. There is a danger that people will not be prosecuted even though it is obvious that they have committed a fraud under the scheme. Perhaps, I should tell the Seanad how the matter works. In the course of the administration of the Act, officials of the Department of Industry and Commerce find that a fraud has been committed. They collect the evidence of that fraud and, in due course, the file containing that evidence comes to me. Having satisfied myself that there is evidence to sustain a prosecution, I sign the certificate. Now, the certificate  with all these papers are then sent from the Department of Industry and Commerce to the Chief State Solicitor's Office. The Chief State Solicitor's Office has always been in my experience understaffed and overworked. In the course of time, however, that file comes up for attention. It is examined there, and there may be a query as to some of the documents in the file, a request for further information on the documents and certain information as to the officers who will be available in court when the case comes up for hearing. After a time the file is sent from the Chief State Solicitor's Office to the local State Solicitor's Office and he also may be understaffed and overworked, or there may be a delay in getting the case to the court or for some other reason there may not be expedition in the bringing of the case to trial. Now, I know the three months would be a tight fit in many cases. Under the emergency powers legislation it has been my ambition to try to get prosecutions for price offences and similar offences brought quickly, because the propagandist value of a conviction was worth more than all the exhortation or Press advertisements I could pet my Department to turn out, but always, there is a considerable delay in getting the cases brought to court after a detection had been made. Knowing the efforts made by the Chief State Solicitor's Office—made at my request and in response to the pressure I put on them to get these cases heard quickly—I have a feeling that in the piping times of peace cases of this kind will not be brought forward as rapidly as might be desirable. I would be prepared to reduce the period to the minimum.
Perhaps, if the amendment is left over, I will have an inquiry made from the Chief State Solicitor. I will inquire on this basis: that if we reduce the period from six months to three months is there any risk that cases of fraud would not be prosecuted because of the lapse of time? If I felt that there was risk that frauds might successfully escape the penalty, then I would urge that the period of six months be retained. But if the Chief  State Solicitor's Office tells me that no reasonable risk would emerge I am prepared to consider bringing in an amendment.
Mr. Duffy: That is all right. I will withdraw the amendment.
Amendment No. 9, by leave, withdrawn.
Sections 9 to 14, inclusive, agreed to.
Schedule and Title agreed to.
Bill reported without amendment.
Report Stage fixed for Wednesday next.
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