Seanad Éireann - Volume 101 - 29 June, 1983

Joint Committee on Legislation: Motion.

Professor Dooge: I move:

(1) That Seanad Éireann concurs with Dáil Éireann in its Resolution communicated to Seanad Éireann on 21 June, 1983, that it is expedient that a Joint Committee (which shall be called the Joint Committee on Legislation) consisting of 18 members of Dáil Éireann and 7 members of Seanad Éireann be appointed—

(a) to invite submissions in writing, or orally if considered necessary by the [277] Committee, from interested persons or bodies on bills or other proposals for legislation (other than measures arising out of or relating to the Budget) referred to it by either House on Motion made by or with the consent of a Member of the Government and to provide a record of same for the information of each House;

(b) notwithstanding anything to the contrary contained in Standing Orders relative to public business, to discharge the functions devolving by virtue of those Standing Orders on the Standing Joint Committee on Consolidation Bills;

(c) to examine the reports of the Law Reform Commission and to report its opinion and recommendations thereon to each House;

(d) to keep the law under review and to formulate proposals for law reform and to report thereon to each House;

(e) to consider any Bill referred to it by either House with the concurrence of the other; and

(f) to examine and report to each House on any statutory instrument laid or laid in draft before either House, other than regulations made under the European Communities Act, 1972, and to recommend, where it considers that such action is warranted, whether the instrument should be annulled or amended.

(2) That the Joint Committee have power to appoint sub-committees and to refer to such sub-committees any matters comprehended by paragraph (1) of this Resolution.

(3) That the Joint Committee or any of its sub-committees shall, unless they decide otherwise, hold their meetings in public under the conditions specified in Standing Order 76.

(4) That the Joint Committee have the power, subject to the consent of the Minister for the Public Service, to engage the services of persons with specialist or technical knowledge to [278] assist it or any of its sub-committees in its consideration of any matter comprehended by paragraph (1) (c) or (1) (d).

(5) That the Joint Committee, or a sub-committee to which a statutory instrument is referred, have power to require any Government Department or other instrument-making authority concerned to submit a Memorandum explaining any Statutory Instrument which may be under consideration or to depute a representative to appear before it as a witness for the purpose of explaining any such statutory instrument.

(6) That the Joint Committee have power to report to each House from time to time any Memoranda submitted or other evidence given to it or to the relevant sub-committee in explanation of a statutory instrument.

(7) That any Member of either House may attend and be heard in the proceedings of the Joint Committee or a sub-committee in relation to a matter comprehended by paragraph (1) (a) subject to the prior consent of the Joint Committee.

(8) Where a Bill is under consideration in accordance with paragraph (1) (e) of this Resolution a Member of the Government in charge of the Bill or a Minister of State nominated by him shall for that purpose be an ex-officio member of the Joint Committee or any relevant sub-committee and members of either House, not being members of the Joint Committee or relevant sub-committee, may attend and be heard at meetings held for the purpose of such consideration without having a right to vote.

(9) That the Joint Committee and any sub-committee appointed, previous to the commencement of business, shall elect one of its members to be Chairman, who shall have only one vote.

(10) Subject to paragraph (8), all questions in the Joint Committee and in each sub-committee shall be determind [279] by a majority of votes of the members present and voting, and in the event of there being an equality of votes the question shall be decided in the negative.

(11) Subject to paragraph (6), that every report which the Joint Committee proposes to make under this Resolution shall on adoption be laid before both Houses of the Oireachtas forthwith whereupon the Committee shall be empowered to print and publish such report together with such related documents as it thinks fit.

(12) That the quorum of the Joint Committee shall be seven of whom at least three shall be Members of Dáil Éireann and one shall be a Member of Seanad Éireann and that the quorum of each sub-committee shall be three of whom at least one shall be a Member of Dáil Éireann and at least one a Member of Seanad Éireann.

This motion is concerned with the establishment of the Joint Committee on Legislation. Unlike many of the other committees we have been concerned with here this is a major new development. It is the concern of Motion No. 5. Motion No. 6 is concerned with procedural questions in regard to the establishment of the committee. While we have agreed to discuss the motions separately, I think it might be more appropriate to discuss Nos. 5 and 6 together.

An Cathaoirleach: Is that agreed?

Mr. Lanigan: Yes.

Professor Dooge: This committee represents the first important move towards the reform of the procedure of the Houses of the Oireachtas. It has been brought forward by Minister John Bruton, who has been charged with Oireachtas reform as being such. This House should pay careful attention to what is being proposed here.

It is proposed that this committee of 18 Deputies and seven Senators should be charged with a number of functions. The first of these is that this committee should be responsible for the introduction of [280] hearings on legislation in the Irish legislative system. It means under this particular motion that any matter, any proposal for legislation, can be referred by motion to the Joint Committee on Legislation. It might be the heads of a Bill or a draft Bill and this can be initiated by or with the consent of a member of the Government. Deputy Bruton in introducing this in the other House thought it was appropriate that this should be the manner in which this should be done on the establishment of the committee, that it might well be that as the committee develops its own procedures alternative ways of referral will be tried. The committee itself may play some role in selecting what it thought were appropriate matters. After an initial period this is going to be reconsidered.

There are a number of other matters which are also referred to this committee — such as dealing with Consolidation Bills. There was a special Joint Committee on the two Houses dealing with Consolidation Bills and its functions are now to be taken over by the new Committee. The question of private Bills is not being brought under the new Committee on Legislation. Private Bills occur very rarely indeed. They have their own special procedures, their own methods for hearing, and an undue number of complications would have been involved if they had been brought under the Committee on Legislation. Their function is not that of general legislation. Their function is that of providing for private matters — not so much nowadays for individuals but mainly for organisations, the amendment of charters and matters of this sort. While it was considered that it might have been cleaner to have it all together, it was ultimately decided that this was not so.

Another responsibility that is being given to this committee is in regard to law reform. It has been given a positive role in regard to the Law Reform Commission itself. That commission was established under the 1975 Act and it has since produced ten working papers and four reports. Like many other commission reports, these reports have received insufficient discussion in the Houses of [281] the Oireachtas. They have had insufficient impact in general on legislation. By feeding the results of the work of the Law Reform Commission directly into the Committee on Legislation it is hoped that it will have its greatest input there. Also there is provision for this committee not only to examine the reports of the Law Reform Commission but, in fact, to initiate law reform studies under paragraph 1 (a), to keep the law under review and to formulate proposals for law reform and to report thereon to each House. That is another very important function.

I have already mentioned considering legislation at a very early stage which appears under paragraph 1 (a). That is a very important development. I just want to stress that point for a moment before I go on to deal with how Bills will ultimately be dealt with.

One of the problems of our system is that as far as we Members of the Oireachtas are concerned legislation is too far advanced on its assembly line before we have any notion whatsoever of what is going on. This has been a great difficulty in the operation of our system. The result is that all the discussions in regard to important legislation before it becomes congealed as a draft Bill are between members of pressure groups, members of the civil service with, at quite a late stage, Minister being involved. One of the main functions of this committee on legislation will be that at a very early stage there will he the input from the ordinary Member of the Legislature; that he or she will have an opportunity here through this committee, or through Seanad representatives on this committee, to help in the shaping of legislation at a very early stage. This is a reform of the highest importance.

Once a proposal, has reached the stage of a Bill, there is a provision here for the consideration of Bills in Committee in this Joint Committee. Instead of having a Committee Stage on the floor of the Dáil and Seanad, there will be a Committee Stage in Joint Committee which will allow for all the flexibility of the select committee procedure. When we were discussing the Courts-Martial Bill [282] last week, tributes were paid to the Defence Act, 1952, which was considered for a long period in select committee and tributes were paid to the value of the work that was done in Committee in that case. I want to emphasise that none of the rights of the Seanad in regard to legislation are going to be impaired in any way by the new procedure. I want to follow through what will happen.

Let us assume, as is usually the case, that the Bill is initiated in the Dáil. The Bill will then go through its First Stage, that is its circulation, and a Second Stage debate in Dáil Éireann. A proposal is made in Dáil Éireann to send that legislation to the select committee and Seanad Éireann must concur. In other words, Dáil Éireann cannot by resolution deprive Seanad Éireann of its right to have that Bill dealt with as a normal Bill. This is very important. It is not just a question of a motion coming up and the Leader of the House bobbing up and saying “I move” and the Minister gabbling a few words and that is that. There can be a full Second Stage debate on that concurrence motion and if it happened to be the view of the Seanad that that Bill should not go to select committee the Seanad can debate it and there can be any broad amendment equivalent to the present Second Stage amendment denying a Second Reading because of a particular stated reason. It will be possible to put down to that concurrence motion an amendment denying the request to send it to this committee on the same grounds. There is no difficulty here in regard to the rights of the Seanad.

If the Bill is then sent to be considered in committee by this new Joint Committee on Legislation, the Senators will be represented there. It is almost certain that in the beginning the legislation that will be dealt with in this way will be technical, specialist legislation. This House is entitled to appoint seven Members to this particular committee and if there was a case that there was a Bill coming up which was a highly technical Bill it would be open to this House to vary its membership of that committee. The Seanad would be entitled to receive a report from the committee of selection [283] discharging the present members and substituting others, so that we could ensure in regard to legislation of particular importance that the best team were assembled to represent the Seanad. Under what is proposed here, we have a great deal of flexibility and we have our own powers.

When a Bill has been considered in this new committee it will then be sent back to the House in which it was initiated. If that was in the Dáil, there would then be a Report Stage and a Final Stage in the Dáil and the Bill would then come to the Seanad. Since the Committee Stage had been dealt with in Joint Committee, it would come into the Seanad on Report Stage. It would be possible for Members of the Seanad to put down amendments on Report Stage. Though it is unlikely to happen after such serious consideration if in the course of a debate on Report Stage the Seanad could recommit the Bill in order that it could avoid the restriction of Report Stage debate to just one contribution. At the moment we have the power to recommit either a whole Bill or a section of a Bill into Committee and if it appears that the committee work has not been thoroughly done, that power would still rest with the Seanad. I draw the attention of the House to these very important new developments.

I pass on to some of the other functions of this joint committee on legislation. It is also proposed that the Joint Committee should exercise the functions presently exercised by the Seanad Committee on Statutory Instruments. I would like on this occasion to pay tribute to those Members of Seanad Éireann who since 1948 have contributed to the work of this Committee on Statutory Instruments. The committee was established on the proposal of the late Senator Luke Duffy who was then Secretary of the Labour Party and a Member of this House. It was reestablished after every general election since. The Seanad committee was set up to take a look at the maze of secondary legislation and it examines statutory instruments under six headings. First, it examined whether there was any charge on the public revenue. It also checked [284] secondary legislation for any unusual or unexpected use of powers. It examines secondary legislation to ensure that there is no retrospective effects. It examined secondary legislation to ensure there was no unjustifiable delay in the making of orders or regulations under statute. It was entitled to report to Seanad Éireann seeking the elucidation of the form or the purport of any statutory instrument. Finally, it could draw the attention of the House to any defective drafting of statutory instruments.

I say that we should pay tribute on this occasion to the work that was done by this committee but I would also like to point out that it did suffer from the difficulties that we discussed earlier in regard to committees generally. It did suffer from the fact that adequate staff was not available in order to enable it to carry out its work. The chairman of the Seanad Committee on Statutory Instruments has had occasion to report back repeatedly to the Seanad in regard to this difficulty on staffing. If we look back over the record of the committee we will find there were times of great activity and times of lesser activity. Here again, we can notice a committee suffering at times because of lack of interest of members. That committee did an excellent job not just by what it reported here to Seanad Éireann but the existence of that committee and the work that it did in the early years had the effect of raising very considerably the standards of the implementation of statutes. Many times it drew attention to irregularities and it proposed improvements. These were gradually adopted and the whole of our system of secondary legislation has benefited.

There is one change in regard to this particular activity and that is that the new committee is not only entitled to recommend the annulment of a statute but it is also given the very valuable power of recommending the amendment of a statutory instrument to the House so that the House could say that it would recommend in turn that a statutory instrument should take the different form. This is a very interesting improvement.

In summary, the Joint Committee on Legislation is a new departure. It is going [285] to be a committee whose members will have to put in a great deal of work. We want to change our system here in the Houses of the Oireachtas, to try to bring it more into line with the system in other countries, who have adapted to modern conditions by an increasing use of legislative committees, of hearings in regard to legislation, hearings in advance of legislation, of select committees examining legislation line by line off the floor of the House. If this is to be a success, then we are going to have to look for seven very capable, very hard-working Senators to play our part in this particular committee. I recommend the establishment of the committee.

Mrs. McGuinness: I welcome the setting up of this committee which will deal with quite a number of things which hitherto there has been no committee of the Oireachtas to deal with and which, in fact, have not been dealt with at all. It is quite a significant step in the improvement of our procedures that we should deal with the matters which are set out to be dealt with by this committee. In particular, I feel it is essential, if the Law Reform Commission is to be of any use, to set up a mechanism of some sort like this which would deal with examining its reports and with making recommendations as to what legislation should be brought in on account of the reports.

As I see it at present, it simply depends on the taste and fancy of whatever Minister happens to be dealing with the area that the Law Reform Commission dealt with in a particular working paper or report, whether any notice is taken of it. Members of the Law Reform Commission with whom I have spoken about this issue feel a considerable degree of bitterness about the amount of work that is put into some of their reports and the little notice that has been taken of it. There have been exceptions. For instance, in the recent report on illegitimacy a major seminar was organised by the Minister of State, Deputy Nuala Fennell, about this and it was a welcome break in the attitude to Law Reform Commission reports. While one may not always agree with what the Law Reform Commission says, there is very little point in setting it up, in staffing it, in paying for it and so on [286] and then simply allowing its reports to gather dust. I hope that this new committee will deal effectively with this area.

Paragraph (1), sub-paragraph (d) states: “to keep the law under review and to formulate proposals for law reform and report thereon to the House”. That seems to me to be of crucial importance, that it would give an opportunity to Members of the Oireachtas to have an official channel rather than simply putting down Private Members' motions in this House which may or may not ever be reached, and in any case may only be reached after a very long time. To have an official channel to bring forward proposals for law reform could be useful to Members of the House. It is very important that paragraph (7) provides that any Member of the House may attend and be heard so that some opportunity may be given to Members who are not necessarily members of this committee to put in their contribution on this kind of subject.

Like Senator Dooge I was struck by the importance of the work of the committee that reviewed statutory instruments. We very often underestimate the importance and the scope of legislation which was brought before this House and the other House by statutory instrument rather than through means of Bills and Acts. The fact that such a large amount of important legislation comes in through the ministerial power to bring in statutory instruments and is laid on the Table of the Oireachtas but, at the same time, very often does not receive any particular consideration from Members unless special attention is drawn to it means that the work of the Committee on Statutory Instruments was very important indeed. They carried out that work extremely well. That kind of task fits in very well with the sort of proposals that are being made about this committee.

As far as dealing with complicated Bills by committee system is concerned, again this is something which all of us probably will welcome. So long as it does not take away from the ordinary powers of the House it is obviously a convenient and suitable method of dealing with legislation which very often is of such a technical nature that only very few Members of the [287] House can make a proper contribution to it in an ordinary debate though they have not had a great deal of time to study it.

What Senator Dooge has said is true, that legislation by the time it reaches the House is too far advanced in its formulation for it to be changed in any material aspect. Again and again we have the spectacle of Bills going through the other House and this House where amendments are proposed by various Members, by the Government and by Opposition parties, by individual Members and so on. While Government amendments, generally speaking, get included in the legislation, it is comparatively rare for other Members to see one of their amendments actually accepted. It does happen but it is comparatively rare. Very often one feels that if only a point could have been made when the Bill was being drafted or when it was being considered, it could very well have changed the minds of the drafters and could have affected the Bill as it turned out in its final form.

This applies, too, to many of the bodies and groups of one sort or another who get in touch with us as Members of the Oireachtas asking us to put forward ideas or amendments on particular Bills. One need think only of the Bill with which we are going to deal later on today, the Telecommunications Bill. I am sure all of us have received various documents from different groups looking for the proposing of amendments to this Bill and yet most of us know in our hearts that many of them are unlikely to be accepted, whereas they might well have affected the original drafting of the Bill if they were put in at an earlier stage.

I am very anxious that this committee should start its work at an early stage and that it should be regarded as a committee of very great importance, one that would keep going, that would meet on fairly frequent occasions and would be prepared to receive suggestions from Members of the House who were not, in fact members of the committee so that it could carry on its work as effectively as possible.

Mrs. Robinson: I also welcome the establishment of this committee and the [288] very substantial advance in the general legislative work which can be done by Members of both Houses. I agree with the points that have been made, in particular by Senator McGuinness in her contribution. I am aware that time is passing and that there are other major proposals coming before this House, as always together at this time of the year, so I want to be as brief as possible in my contribution. I want to ask a number of questions with which the Leader of the House might deal in his response.

In looking at the terms of reference of the committee I endorse what was said about the importance of the work it will do. What is the difference between sub-paragraph (a) and subparagraph (e)? Under subparagraph (e) there seems to be a simpler provision to consider any Bill referred to it by either House with the concurrence of the other. Does the committee have the same powers to invite submissions in writing and orally, if necessary, if a Bill is referred to it under subparagraph (e)? It seems to me that there may be some difficulty in understanding just how those two subparagraphs knit together.

In relation to this joint committee, and indeed this is a general comment, why is there express reference to its power to appoint sub-committees when that is not referred to, for example, in the terms of reference of the joint EEC committee which has always established and has four standing sub-committees? I merely make this comment because it seems to me there is not much standardisation of the procedure in relation to the setting up of these joint committees. That may be a good thing. Standardisation might, in fact, be a rather inflexible approach. It may be better that each of the joint committees has different terms and a slightly different shape in relation even to the motions establishing it. I notice the express power there. I notice the express power that any Member may attend and be heard and this goes back to what we were discussing earlier in relation to the State-sponsored Bodies Committee. Why is it expressed here and why are we merely implying it in the manner that the Leader of the House mentioned in relation [289] to the other committee? Paragraph (6) states that the joint committee has power to report to each House from time to time any memoranda submitted or other evidence given to it or to the relevant sub-committee in explanation of a statutory instrument. Is it that the committee would annex to its own report the material submitted to it so that it could be considered by both Houses?

I end on one substantive comment on which I would agree very much with Senator McGuinness, that it is very much to be welcomed that we have at last a structured parliamentary forum to consider the report of the Law Reform Commission established by Act in 1975. The Law Reform Commission have suffered from acting very much in isolation from the parliamentary and legislative process and it is hoped that the power to examine the reports of the Law Reform Commission will increase the work output of that commission and perhaps the broad based relevance of some of the areas examined will have a beneficial influence on the work of the Law Reform Commission as well as highlighting the need for reform. I recommend that this committee, when established, set up close working links with the legislative committee of the Incorporated Law Society and also with the Bar Council in relation to measures of reform because I know that both bodies have had frustrating experiences in the past in trying to get reforms in areas which were not perhaps of top political priority but which were urgently needed as measures which had either been partially struck down by the courts or a case had revealed a defect in the legislation. This is a matter in which there would be available considerable expertise in the two professional bodies and indeed elsewhere in the community which can be drawn on by the committee. I welcome its establishment and I would like clarification of those points.

Professor Dooge: With regard to the points raised, I will try to respond as best I can. If what I say here is not satisfactory, I will endeavour to get more detailed information for the Senators. Senator [290] McGuinness and Senator Robinson both referred to this question of the right of other Senators to attend at this particular committee. Once again, this is a reflection of the fact that the matters which will be of concern to this committee at any one time will have a very broad scope particularly if under paragraph (1) (a) it is concerning itself with possible draft legislation. Also in regard to this, it will give an opportunity to Senators, as I indicated in regard to the EEC committee where there is an item of particular interest to them to attend and, with the permission of the chairman of the committee, to contribute to the discussion but not to vote. Senator McGuinness, echoing what I said, spoke of the importance of Members of the Oireachtas being able to influence legislation at an early stage and not being faced with proposals for legislation which are difficult to change after they have congealed.

I would say though, regardless of what Senator McGuinness said, in tribute to Ministers from all parties who have held office, that the acceptance of Opposition amendments is not that rare a phenomenon in Senate Éireann. It certainly does vary from Minister to Minister and from topic to topic or from Bill to Bill.

I should like to place on record that on the first occasion I handled a Bill for the Opposition that the Minister in charge, who was a member of the Fianna Fáil Party and well known for being irascible, accepted nine of my ten amendments. We may all deplore the fact that business in the House is often too rushed to allow for the acceptance of Opposition amendments and this is certainly something that happens all too frequently. We hope that the provisions for these early hearings may help in this regard. It has been said to me in the past that it must really be frustrating in Opposition in the Seanad to find yourself often faced with Bills when the Dáil has gone home, with no real hope of getting amendments through. That was my experience down through the years but some of those really good amendments did not die. They came up two years later in the next Bill but this time they were part of the Minister's proposals and they went through. [291] We could well do without this time lag. Particularly those of us who are advancing in years have not as much time to wait for our good ideas to be implemented in the next round of legislation rather than the one that is before us at present. I agree with Senator McGuinness that this idea of getting our input earlier is indeed a very important one.

Senator Robinson asked about the differences between paragraph (1) (a) and paragraph (1) (b) and the difference in practice here. The position is that paragraph (1) (a) provides for oral hearings on proposals for legislation. This is the early stage process. It provides for oral hearings and it is specifically given the task of reporting to the House and providing a record of the evidence that is made before it. Its report will not merely be recommendations but under (1) (a) the evidence which has been submitted, whether in writing or a record of the oral hearing, will be reported. It may not be an absolutely complete verbatim record but all important evidence will be attached in the report to the House. In regard to paragraphs (1) (e), the position is that this corresponds to the select committee operation at the moment. As I understand it, the provision in regard to the furnishing of memoranda to the House is, as it were, a re-enactment here of the present provision in regard to select committees.

This committee on legislation is a new departure; it will have to establish its own precedents, and its own modes of operation. It would be quite appropriate if this committee after, say, a lapse of 12 months to allow itself to become quite familiar with the operations that have been given to it by Dáil Éireann and Seanad Éireann, were to report back to the House in regard to these terms of reference that we are now considering as to whether they are appropriate. They could also consider whether their scope is correct, whether the procedures are appropriate or whether the powers should be modified in any way. In our charge to the legislative committee we give some details, but the essential charge is to carry out this pilot experiment and [292] make a success of it. That is the charge Seanad Éireann is giving to this committee. If this committee feels it could do a better job by any variation in the terms of this motion then it should, having given adequate trial to the procedures that are suggested here, it certainly should come back to us with a recommendation.

There is another point in regard to sub-committees. The position is that any committee of the Oireachtas can informally set up sub-committees for its own purpose. The specific provision here is to indicate to the committee that there may be certain areas in which it may wish to make a permanent or quasi-permanent delegation of one of its functions I repeat what I said earlier, it is very important that law reform will now have a home inside the legislative system. It may well be that this committee would set up a sub-committee on law reform and the fact that it is highlighted here, though I do not think it really makes all that difference as to how it operates in practice, it does increase support for it.

Question put and agreed to.