I hope readers of this blog from outside Ireland will forgive me if I post on a subject that appears to be intensely domestic, and yet if you are from Australia, the UK, New Zealand, Canada or the United States the matters discussed also have relevance in your domestic legislative process.
For many years there have been significant concerns about the increasing democratic deficit engendered by the unfettered proliferation and enforcement of secondary legislation in general, but even more so with the secondary legislation promulgated by delegated “secondary” legislative bodies such as the Superior Courts Rules Committee or closer to my professional life, the Medical Council.
Secondary Legislation
The Irish Constitution of 1937 provides for the delegation of power to enact secondary legislation:
Article 15.2 of the Irish Constitution 1937 states that:
1. The sole and exclusive power of making laws for the State is
hereby vested in the Oireachtas: no other legislative authority
has powers to make laws for the State.
2. Provision may however be made by law for the creation or
recognition of subordinate legislatures and for the powers and
functions of these legislatures.
Professor Jim Dooge, one time Irish Minister for Foreign Affairs, in a June 1984 Seanad Éireann Debate (Upper House of the Irish Legislature, the Oireachtas) on secondary legislation, said that secondary legislation was “unavoidable”. He clarified:
“It is unavoidable because of the manner of the detail with
which certain matters
must be regulated, a degree of detail
well beyond what can, with convenience,
be encompassed
inside statutory legislation. It is also necessary, because the
nature of the modern policy is such that it is impossible to
anticipate in a world
which changes rapidly, not only
technologically but also politically, but perhaps
unfortunately
not quite so rapidly socially, there are unanticipated effects.
Also, delegated legislation is necessary because the borderline
between legislation
and administration is by no means a sharp divide.”
Since the foundation of the Irish State the increasing inability of the legislature (Houses of the Oireachtas and the President’s constitutional testing powers) to formally legislate by statute for the rapidly evolving and profound social, scientific, economic, legal and moral environment has meant that in many aspects of life the State has absconded its responsibility and delegated legislative power to individual Ministers and Statutory Bodies such as the Medical Council, The Law Society of Ireland, and Superior Courts Rules Committee. Although governed by a primary Act this delegated empowerment results in a legislative process that is then two steps removed from the true democratic engagement and oversight, envisaged by our Constitution.
The vast majority of secondary legislation enactment is by way of Statutory Instrument, signed off by the relevant Minister, or authorised official of a Statutory Body with delegated legislative powers. From 2000 – 2012 there have been a total of 9208 SIs issued giving a ratio of 1 Act of the Oireachtas (Parliament) for every 17 Statutory Instruments (a peak was reached in 2005 when the ratio was 1/27).
Much of the recent increase in SI use has been as a consequence of being the preferred method of transposing European Union Directives, involving about 150 SIs annually. (EU Regulations do not require any domestic enactment process as they are automatically incorporated).
The legislative tactic of transposition of EU Directives was enabled by Oireachtas approval of Section 3 of the European Communities Act 1972, and allowed by Section 4(1)a of the amended Act which meant that any SI made under the 1972 Act are automatically given statutory effect.
It was only with the establishment of a Joint Committee (a committee involving members of both Houses of the Irish Parliament – the Dáil or lower chamber and the Seanad upper chamber) on European Scrutiny in October 2007, a committee legislated for by the European Union (Scrutiny) Act 2002, that some semblance of European legislative oversight exists, even if Section 3 of the 1972 Act means that finalised EU Directives are a statutory fait accompli.
A former Minister for Justice, Michael McDowell has stated:
“As presently organised, the Oireachtas is nowhere
near being in a
position to fulfil the enhanced role
envisaged for it under the Lisbon
Treaty, let alone to
discharge the functions which it has abysmally
failed
to discharge in respect of our membership of the
European
Union up to this point. The whole process
of transposition of EU
law into Irish law is one which
the Oireachtas has, largely speaking,
totally abdicated
its functions.”
Statutory Instruments and Domestic Practice
Leaving Skibereen Eagle-type European scrutiny to one side, for the remainder of the domestic Statutory Instrument process only about one-quarter of SIs are required to be laid before the Houses of the Oireachtas (Parliament) for potential legislative scrutiny. In practice, however, this scrutiny is “window-dressing” at best, as any objection to any or all of the provisions of the SI have to be debated in the very limited Private Members time available, and even if that was to happen a successful objection to any part of the provisions results in the entire SI being rejected. Given that a majority Government promulgates the SI then the likelihood of annulment is extremely rare and to date has not happened.
Professor Jim Dooge in 1984 summarised the wide variety of practices where Statutory Instruments were concerned:
1. “There are statutory instruments properly made but which can
be certified by the Attorney General to be of such a local or a
personal nature that there is no need to give notice of them in any
form whatsoever.”
2. “We have a second class of statutory instruments of which notice
must be given in Iris Oifigiúil and which must be deposited in certain libraries. “
3. “In many cases there is a requirement that the statutory instrument be laid
on the Table of each House of the Oireachtas, thus constituting a third group
of statutory instruments.”
4. “Among these there is a fourth group, which are subject to annulment
by either House of the Oireachtas — the so-called statutory orders subject
to negative resolution.”
5. “Finally, there are statutory instruments, which require positive approval
by both Houses of the Oireachtas and belong to the group of affirmative resolution.”
Most Statutory Instrument enactment in Ireland is governed by the Statutory Instrument Act 1947 (+Amendment Act 1955) and its provisions apply to any Statutory Instrument which:
Section 2.–1
(a) is made after the 1st day of January 1948, and
(b) is made by any of the following authorities, namely:–
(i) the President,
(ii) the Government,
(iii) any member of the Government,
(iv) any person or body, whether corporate or unicorporate, exercising through the State any function of government, or discharging throughout the State any public duties in relation to public administration, (vi) any authority having for the time being power to make rules of court, and
(c) is either (i) required by statute to be laid before both or either of the Houses of the Oireachtas, or (ii) is of such character as affects the public generally or any particular class or classes of the public, and
(d) is not a statutory instrument which is required by a statute to be published in the Iris Oifigiúil (the Irish State Gazette)
The Statutory Instruments (Amendment) Act 1955 amended in part Section 3 of the original Act but kept the statutory demand that any SI subject to the Act must,
(1) (a) Within seven days after the making thereof, a copy thereof shall be sent to each of the following namely, the National Library of Ireland, the Law Library, Four Courts, Dublin, The King’s Inn Library, Dublin, the Incorporated Law Society of Ireland, the Dublin Chamber of Commerce, the Cork Chamber of Commerce, the Limerick Chamber of Commerce, the Galway Chamber of Commerce and the Southern Law Association, Cork.
Increasingly even basic SI Act 1947 oversight is being bypassed by inserting a clause in the enabling Act to have any SIs issued published in the Iris Oifigiúil.
Secondary Legislative Bodies and Democratic Vacuums
For the reasons outlined above where the State has delegated legislative function to a particular body then the democratic oversight is even more remote from the source of that democracy, and this has engendered an arrogant and dangerous arrogation of power, and abuse of that power.
An example of this dangerous development occurred in my own professional life when I had serious reservations concerning the delegated legislative powers being proposed at the drafting stage of the Medical Practitioners Act (2007). I pleaded for a rigorous form of democratic accountability but my objections fell on stony ground and the Act was passed with enormous legislative power delegated.
As a consequence democratic oversight has become near impossible. For example with a recent Statutory Instrument issued by the Medical Council (SI 171 of 2012) concerning Annual Retention Rules I felt that the threat of referral, of a practitioner who fails to submit a valid annual Application for Retention on the Medical Register, to the Preliminary Proceedings Committee to be draconian and objectionable.
The Medical Practitioners Act 2007 defines “published in the prescribed manner”, in relation to any document or information (howsoever described), means the document or information, as the case may be—
(a) is published on a relevant Internet website, and
(b) is available for inspection, at the offices of the Council and at all reasonable times, by members of the public.
These “publication” provisions are not enough to excuse the Medical Council under the Medical Practitioners Act (2007) from the remit of the Statutory Instrument Act 1947, and the Amendment Act 1955. Having satisfied myself of this statute requirement I asked the Galway Chamber of Commerce in February 2012 as to whether a copy, as required by the SI Act, of the most previous Medical Council SI (741/2011) had been deposited in the Chamber within seven days of its issuance. I found out that not only had a copy of the SI not arrived in time, it had not been received at all!
The deficit in democratic process was further stretched when the Rules under SI 741/2011 were put into effect from the 14 December 2011 and yet a very basic validation by way of publication in the Iris Oifigúil did not occur until the 21st February 2012.
This picking and choosing (and avoidance) of democratic oversight galled and prompted an exchange with the Medical Council, which finally resulted in being told that if I had any further concerns about the issuance and validity of Medical Council SIs I should consult a lawyer.
I am now obviously classified as a “vexatious litigant” in Medical Council eyes! So much for our second-rate democratic process where even the most basic of oversight demands are not met!
Henry VIII and the Lunatic Fringe
What is the basis of this democratic deficit?
They are known as Henry VIII clauses.
In 1531 a Statute of Sewers (23 Henry 8 c.5) gave the Commissioner of Sewers the powers to make rules (like the Medical Council), which had the force of parliamentary statutory legislation. Latching onto this development in 1539 Henry VIII forced through Parliament the Statute of Proclamations (31 Henry 8 c.8), which allowed him to make proclamations, which then had the force of an Act of Parliament and could alter the provisions of previous acts without debate.
For Henry VII in the 1530s read the EU in 2013!
A later statute of James I remaindered these ‘delegated’ powers and it was not until the Lunacy Regulation (Ireland) Act 1871 (34 Vict.) that such a clause found its way back into UK & Irish legislation again and which then was to be the kernel for the exponential use of secondary legislative arrogation of democratic process since.
The clause in the Lunacy Regulation (Ireland) Act reads:
118. The Lord Chancellor may from time to time make such orders as to him
shall seem meet for carrying into effect the purposes of this Act, and for
regulating the form and mode of proceed- make generaling before and by
the masters and the practice in matters in lunacy, orders. and for regulating
the duties and powers of the several officers in lunacy, and, so far as to him
may seem expedient, for altering the course of proceeding herein-before
prescribed in respect of the matters to which this Act relates, or any of them;
and any such order as aforesaid may be from time to time rescinded or varied
by the like authority;
(The sad thing about the Lunacy Regulation (Ireland) Act of 1871 is that its provisions are still the primary legislation governing mental capacity in Ireland today. In the Court (Supplemental Provisions) Act 1961 the jurisdiction and powers previously vested in the “Lord Chancellor” are now vested in a judge of the High Court.)
Section 3 of the European Communities Act 1972 mentioned previously is the ultimate expression of a modern Henry VIII clause. It states:
Section 3. –
(1) A Minister of State may make regulations for enabling section 2 of this Act to have full effect.
(2) Regulations under this section may contain incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).
The clause in slightly less and equally arrogative forms has appeared in multiple primary legislation since:
4.—
(1) The Minister may by regulations provide for any matter referred to in
this Act as prescribed or to be prescribed.
(2) Without prejudice to any provision of this Act, regulations under
this section may contain such incidental, supplementary and consequential
provisions as appear to the Minister to be necessary or expedient for the
purposes of the regulations.
Residential Institutions Statutory Fund Act 2012
Or,
4.—
(1) The Minister may by regulations provide for any matter referred to in
this Act as prescribed or to be prescribed or for the purposes of enabling
any provision of this Act to have full effect.
(2) Regulations under this Act may contain such incidental, supplementary
and consequential provisions as appear to the Minister to be necessary or
expedient for the purposes of the regulations.
National Vetting Bureau (Children and Vulnerable Persons) Act 2012.
Or,
5.—
(1) The Minister may make regulations to do anything that appears necessary
or expedient for bringing this Act into operation.
(2) Where a provision of this Act requires or authorises the Minister to make
regulations, such regulations—
(a) may make different provision for different
circumstances or cases, classes or types, and
(b) may contain such incidental,
consequential or transitional provisions as the Minister considers necessary
or expedient for the purposes of this Act
National Asset Management Agency Act 2009.
Where delegated legislative function is devolved to a Statutory Body such as the Medical Council or the Superior Courts Rules committee the clause can also vary in empowerment:
Section 11.—
(1) Subject to subsections (3), (4) and (5), the Council—
(a) may make rules
for the purposes of the better operation
of any provision of this Act,
Medical Practitioners Act 2007
Or,
68.—
(1) From and after the passing of this Act the power of making, annulling, or
altering rules of court and making new rules conferred by section 36 of the
Principal Act shall cease to be exercisable by the Minister for Justice, and in
lieu thereof it is hereby enacted that, subject and without prejudice to the
provisions of this Act in regard to the fees chargeable in court offices, the
said power shall be exercisable by the Superior Courts Rules Committee
with the concurrence of the Minister for Justice.
Courts of Justice Act 1936
Despite being empowered by their own delegated legislative rules committee there is a Judicial wariness of other Constitutionally challenging use of Henry VIII clauses as commented on by Chief Justice Keane in 2004:
It is well established that the exclusive role assigned to the Oireachtas in the
making of laws by this Article (15.2) does not preclude the Oireachtas from
empowering Ministers or other bodies to make regulations for the purpose
of carrying in to effect the principles and policies of the parent legislation.
But it also clear that such delegated legislation cannot make, repeal or amend
any law and that, to the extent that the parent Act purports to confer such a
power, it will be invalid having regard to the provisions of the Constitution.
These clauses however continue to be incorporated in primary statutes, with no European remit, and with no clear direction as to their validity, scope, or consequence.
Secondary Legislation – The Future
Where ministerial orders are concerned the Houses of the Oireachtas must seize back control of the process and in addition to the Joint Committee on European Scrutiny establish a Joint Committee on Domestic Secondary Legislation Scrutiny.
Any debate on statutory instruments laid before either one or both Houses, and subject to either positive or negative resolution, should be removed from Private Members Time and scheduled in main parliamentary time on a once a week basis.
A very strict code of conduct for parliamentary draughtsmanship should be established where any incorporation of a Henry VIII-type clause will be tested by the President for its Constitutionality.
Where delegated statutory bodies with legislative powers are concerned it is even more important that these are scrutinised and supervised fully. I would suggest the appointment of a Constitutional Court where all such legislation is automatically referred.
Further Reading:
Dennis Morris: Henry VIII clauses: Their birth, a late 20th century renaissance and a possible 21st century metamorphosis.
Jonathan Buttimore: Developments in the delegation of legislative powers in Ireland
Brian Hunt: Role of the Houses of the Oireachtas in the Scrutiny of Legislation
Peter L. Strauss: Legislation that Isn't - Attending to Rulemaking's Democracy Deficit
The Irish Supreme Court: Laurentiu v. Minister for Justice [1999] IESC 47; [1999] 4 IR 26; [2000] 1 ILRM 1 (20th May, 1999)
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