Phil Hogan (Carlow-Kilkenny, Fine Gael)

Article 15.2.1° of the Constitution states: "The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State." Consistent with this article and the case-law that has developed around it, legislation has traditionally been categorised as either being primary legislation, Acts, or secondary legislation, statutory instruments. There are a number of features which distinguish primary legislation from secondary legislation. The main differences are as follows: a statutory instrument is made by a Minister, usually acting alone, and is not subject to any form of legislative process; an Act must remain within the bounds of the Constitution whereas a statutory instrument must remain within the bounds of its parent Act; statutory instruments tend to deal with procedural and less substantive matters than Acts; and a statutory instrument cannot create an offence.

What we are dealing with in this Bill is a kind of cross-breed of legislation which treads dangerously on the line separating primary legislation from secondary legislation. Mistakes have been identified by three Departments and they must be remedied as the relevant provisions are regarded as being legally unsound. The European Communities Act 1972 allows for the making of statutory instruments which have statutory effect if they are required by our membership of the EU. This marked the first significant blurring of the lines between primary and secondary legislation. In isolation, perhaps that aspect of the European Communities Act was justifiable and tolerable. However, in recent years we have come to see that the approach taken in the 1972 Act has increasingly been replicated. Examples of this are section 6 of the Diplomatic Relations and Immunities (Amendment) Act 2006, section 3 of the Stamp Duties Consolidation Act 1999, section 2 of the Immigration Act 1999, and section 5 of the Health (Miscellaneous Provisions) Act 2007, upon which this Bill is modelled. We should tread very carefully in adopting this approach any further.

I have taken the opportunity of obtaining some legal advice on the manner in which the Government is seeking to enact this legislation and to see which Departments are the most culpable in blurring the lines of which I have just spoken. The approach may be permissible in a constitutional sense, but that does not make it right. The approach being adopted in this Bill has been the subject of some judicial comment. In a recent case, Leontjava and Chang v. DPP, Ms Justice Finlay-Geoghegan in the High Court did not think much of section 2 of the Immigration Act 1999, which sought to confer statutory effect on orders made under section 5 of the Aliens Act 1935. The Minister should note what she said: "There does not appear to me to be anything in the Constitution which authorises or permits the Oireachtas to determine that a provision which is ... secondary legislation should henceforth be treated in the legal order of the State as if it were an Act of the Oireachtas." Ms Justice Finlay-Geoghegan went on to say: "The only provisions which may be treated as a 'law' within the meaning of Article 15 and have the legal status attributable to such a law are laws which have been made by the Oireachtas pursuant to their exclusive law making powers i.e. provisions which are contained in a Bill, passed or deemed to be passed by both Houses, signed by the President and promulgated as a law." Surely those words from a learned member of the Bench should cause the Minister to question the approach he is taking with this Bill.

The Minister might also consider the consequences of this approach as highlighted more recently by the Supreme Court in the case of Quinn v. Ireland. That case focused on section 4(1)(a) of the European Communities Act 1972, which conferred statutory effect on regulations made under the 1972 Act. The question to be resolved was whether, if statutory effect were conferred on regulations, those regulations could only be amended by an Act. The answer of the Supreme Court to this question was a resounding "Yes". Ms Justice Denham stated:

It has the same status as an Act of the Oireachtas. Therefore the method by which it may be amended requires to be considered from the perspective of this statutory status. As a consequence of having such status, such regulations may only be amended by the Oireachtas.

It can thus be said that conferring secondary legislation with statutory effect is a mere convenience for the Minister because in solving one problem, he is creating another, as this new cross-breed of statutory instruments can themselves only be amended by an Act.

Another question which arises as a result of this new breed of legislation is whether it is covered by the terms of the Interpretation Act 2005. It seems not, because that Act applies to Acts made by the Oireachtas and statutory instruments which have been made under an Act. This new type of legislation appears to fall between the two. It also seems to fall outside the terms of the Statutory Instruments Act 1947. I ask the Minister to clarify whether he will be bringing forward amendments to the Interpretation Act and a new statutory instruments Act arising from the course of action he is taking today.

As far as the Oireachtas and the law-making process are concerned, we are being brought down a certain road and we now see the problems associated with the need to bring in this legislation to cover the Departments of Health and Children, Environment, Heritage and Local Government, and Social and Family Affairs. This is not the right way to go, based on the legal advice to which I have just referred and the decisions and the interpretations that have been put on these matters, particularly with regard to the European Communities Act 2007, which broadens considerably the circumstances in which Ministers can introduce substantive laws in the form of statutory instruments. In so doing, the role of this House in making laws is sidelined.

We have seen many decisions based on political expediency over the past week, but this has been a core value of Fianna Fáil for a long time. It seems the Minister, Deputy Gormley, is delighted to espouse the same values by sponsoring this Bill. The explanatory memorandum states that — presumably back in December 2007 — the Attorney General, following advice from senior counsel, was of the view that there was a legal issue concerning orders made under the Health (Corporate Bodies) Act 1961. If that was the case, why was the need for this Bill not identified then? Are we going to see another Bill in six months to correct matters and implement the Attorney General's advice on some other issue? The question of why the Minister has not sought to enact the orders in the form of an Act, instead of this legislative fiction, must be asked. The Minister is trying to create an artificial category of legislation which will at best be of questionable status when it is tested.

Another fact worth noting is that this is the second Bill we have debated that tries to tidy up a legislative mess created by historical inappropriate use of statutory instruments. The first was the Health (Miscellaneous Provisions) Bill 2007, which came from the Department of Health and Children, one of only three Departments responsible for drafting their own statutory instruments. This Bill, which emanates from the Department of the Environment, Heritage and Local Government, is another of these three Government Departments. The fact that there is a need for this type of legislation should cause those at the Office of the Parliamentary Counsel to rethink the current policy of refusing to draft statutory instruments for these Departments.

I now turn to the individual provisions of the Bill. Section 3(1) of the Bill confers statutory effect on "every order under section 3 of the Act of 1971 made before the passing of this Act". A question thus arises as to whether the statutory effect in question is being conferred on the orders in their as-made, original forms or in their amended forms. If the intent is that statutory effect is to be conferred on orders in their amended forms, that is not provided for in section 3. Given the exceptional nature of what the Minister is trying to achieve here, he must be more explicit and precise. The courts will not infer such an intent and in this instance he will find that section 2 of the Interpretation Act 2005 is of no assistance to him.

Section 3(2) seeks to retrospectively validate actions which would otherwise have been invalid or possibly even unlawful. The House is entitled to be cautious about instances of legislating with retrospective effect. I recall vividly that the former Minister for Enterprise, Trade and Employment, Deputy Harney, when speaking about the Redundancy Payments Acts as they were amended in 2001 arising from social partnership talks, was able to quote advice from the Attorney General that one could not retrospectively pay out redundancy payments to workers in Castlecomer who were made redundant due the closure of Comerama — an issue with which the Acting Chairman will be familiar — because there was a material cost to the Exchequer and that in fact it would be illegal to do so. Yet we have before us an overarching Bill which is doing precisely that. It retrospectively confirms decisions that were made long ago with no difficulty whatsoever.

Section 3(2) is regarded as necessary given that the various agencies have been operating on the understanding that their establishment and authority was soundly based. That confirms what I have just said. Section 3(3) is what is known as a constitutional saving provision. If all legislation enjoys the presumption of constitutionality, I would argue that this provision is unnecessary. Former Chief Justice Keane said as much in the case of Grealish v DPP, so I wonder what value this provision adds to the Bill. Either subsections (1) and (2) are constitutional or they are not. Why does the Minister want to have an each way bet on the issue? Even if subsections (1) and (2) are unconstitutional, I am advised that subsection (3) will not save the problem.

Regarding section 3(4), it would have been far better if this provision had been in the form of a textual amendment. As I understand it, this non-textual approach is at variance with the Government's White Paper on Regulating Better and its policy of statute law restatement.

On the Bill's Second Stage debate in the Seanad, the Minister of State, Deputy Killeen, said that in regard to the Health Act 1961 and the subsequent passage of the Health (Miscellaneous Provisions) Act 2007, the Attorney General advised about the possible unconstitutionality of section 3 of the 1961 Act in respect of health-related bodies. That also extended to local government bodies established under section 3 of the 1971 Act. This situation arises as the latter Act contains similar provisions to those found in the 1961 Act. That is what the Minister of State said in the Upper House. If section 3 of the 1961 Act and section 23 of the 1971 Act are to be viewed as possibly being unconstitutional, what does the Minister of State and the Attorney General have to say about other similarly worded provisions in other Acts? It has been brought to my attention that provisions, such as section 22 of the Fisheries (Amendment) Act 1999, section 54(1) of the Education Act 1998, and section 16 of the Fire Service Act 1981, would also fall into the category of being possibly unconstitutional. All those provisions allow a Minister to establish a statutory body by order rather than by primary legislation. Will we have to see emergency legislation coming before the House again in order to patch up such loopholes?

The Bill is short and may seem innocuous but it has far-reaching implications in terms of how the Oireachtas does its business. It also has far-reaching implications as to how we address problems that have arisen in the Office of the Parliamentary Counsel and the Office of the Attorney General, which may not always have the benefit of being teased out in this House on Second Stage, Committee Stage or Report Stage. The value of bringing primary legislation here ensures that issues concerning statutory instruments are not just acted upon unilaterally by the Minister but also has the benefit of being well scrutinised in the Oireachtas. I value that role which gives us an opportunity to tease out legislative matters, thus getting better legislation as a result.

The agencies affected by this Bill have done great work. It is important that their existence and actions are soundly based in law. It is through no fault of the agencies that this mess has arisen. While I support the work of those agencies, I cannot support this sort of legislation. If the Minister wants to remedy this situation it should be done properly by enacting the full terms of the defective orders in the form of a Bill, not in this artificial, short-cut and questionable way.

See this speech in context