Rónán Mullen (Independent)

Ba bhreá liom fáilte a chur roimh an Aire; guím gach rath air agus é i mbun a chuid dualgas.

As the Minister stated, this is the first time he has addressed the House in any capacity. He is very welcome and I wish him the best with his brief. The legislation before us is both technical and uncomplicated. The Minister dealt with the various issues involved in the transfers of functions. I note, in particular, his remarks about the different roles involved in licensing, property management and the protection of the public interest. Environmental protection is also a key issue.

I have a technical question for the Minister. It is proposed to transfer functions under the Foreshore Acts to the Minister for the Environment, Community and Local Government, save certain functions in relation to harbours and aquaculture and the manufacture of products derived from seafish. Transfers of departmental functions are generally carried out by Government order under powers contained in section 6(1) of the Ministers and Secretaries (Amendment) Act 1939. In replying to parliamentary questions on 22 March 2011, the Minister for Health and Children confirmed that in some cases primary legislation would be needed to proceed with the transfer of functions. The Cabinet handbook sets out the circumstances under which primary legislation is required when functions are being transferred. Chapter 1.23 states:

The transfer of statutory powers from one Minister to another is usually effected by a Transfer of Functions Order.

If any change is to be made in the nature or manner of exercise of the power in question, amendment of the relevant legislation will be required and should be processed in the same way as any legislative proposal.

It would not be appropriate to transfer a power from one Minister to another if this would result in the same Minister exercising powers that the primary legislation intended to be exercised by different Ministers. This would require amendment of the primary legislation or some other arrangement which did not infringe on the intent of the existing primary legislation.

As an aside, the House will later debate a Bill whose explanatory memorandum refers to the Minister for Justice and Equality consulting the Minister for Defence on a particular matter. I look forward to hearing how this will work in practice.

I ask the Minister to clarify the reason the legislation is necessary in light of the provisions and powers under sections 5 and 6 of the Ministers and Secretaries (Amendment) Act 1939, principally the provisions of section 6(1)(c) and (d). Under section 6(1), it "shall be lawful for the Government, whenever they so think proper, to do by order all or any" of a number of things. These include, in paragraph (c), "to transfer the administration and business of any particular public service or of any branch or part of any such public service from any Department of State to any other Department of State and to make all such transfers of officers and property and do all such other things as shall be incidental to or consequential on such transfer of administration and business" and, in paragraph (d), "to transfer from any Minister having charge of a Department of State to the Minister having charge of any other Department of State any particular power, duty, or function vested by or under any statute or otherwise in the said first-mentioned Minister".

In this respect, I ask Senators to cast their minds back to the legislation passed in the House last week on the new Department of public expenditure and reform. The explanatory memorandum to the Bill in question, the Ministers and Secretaries (Amendment) Bill 2011, noted that "a large number of remaining statutory functions which are appropriate for transfer to the Minister for Public Expenditure and Reform will be transferred by way of Transfer of Functions Order, which will be timed to commence immediately following the commencement of this Act". These functions were by and large of an administrative nature. The functions set out in this Bill appear to be of a similar nature. It is not our role under the Constitution to hold the Government to account but it is sometimes our role to ask technical questions and I would be grateful if the Minister would explain why a transfer of function order was not chosen as a more appropriate route in this instance.