Joan Burton (Dublin West, Labour)

I will read the substance of the amendment again. It states:

Nothing in section 53 shall be construed as enabling orders to be made under this Act which purport to have the effect of making or changing laws, within the meaning of subsection 2 of section 1 of Article 15 of the Constitution.

It is the Labour Party's view that the powers the Minister is seeking to confer on himself in section 53 are so wide as to be beyond the boundaries of the Constitution in any reasonable meaning.

In various sections of the Bill, the Minister has made orders, constructions and structures in regard to the different institutions. He covers himself, presumably after consultation and advice, by saying that having arranged that, he will be able to have the courts rubber-stamp what he has dictated. In that sense, he seeks to take unto himself the power to amend legislation.

Section 53 says the Bill will override the provisions of any earlier Act. Much legislation does this. However, section 53 goes further. It purports to empower the Minister for Finance to override Acts of the Oireachtas and to legislate contrary to their terms. The section seeks to make the Minister a one-man legislature, with power by order to amend or repeal the law of the land. The section attempts to equip the Minister with the power to make orders that will have the effect and force of law, notwithstanding any Act of the Oireachtas. If we approve of legislation such as this we may as well pack our bags, because the country will be ruled by the Minister and not, as the Constitution says, by the Oireachtas. There is nothing in the recitals to the Bill that would justify the Government attempting to seize the power of making law from the Oireachtas in this way and to seek to vest it in the Minister for Finance.

It has become a feature of the Minister's legislation that there are recitals at the front of a Bill that seek to paint broad pictures and give extra powers. Much of the Minister's emergency legislation contain these recitals, presumably on the basis that the general arguments in the recitals will impress judges and persuade them to give the Minister full power to override the Oireachtas and the Constitution.

The basic principles were set out by Chief Justice, the Honourable Mr. Justice John Murray, in his judgment in Mulcreevy v the Minister for the Environment, Heritage and Local Government and Dún Laoghaire-Rathdown County Council. The Chief Justice said:

Article 15.2.1 of the Constitution provides that 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. It is well established that the exclusive role assigned to the Oireachtas in the making of laws by this Article does not preclude the Oireachtas from empowering Ministers or other bodies to make regulations for the purposes of carrying into effect the principles and policies of the parent legislation, but it is also clear that such delegated legislation cannot make, repeal or amend any law and that to the extent that the parent Act purports to convey such a power it will be invalid, having regard to the principles of the Constitution.

The courts have also said:

It is necessary to seek the meaning for the words in the statute which absolve the national parliament from any intention to delegate its exclusive power of making or changing the laws. Needless to say, if such a meaning is not possible, then the invalidity of the subsection would be established.

What the Oireachtas is, therefore, faced with, in the words of former Chief Justice, the Honourable Mr. Justice T. F. O'Higgins and affirmed by former Chief Justice, the Honourable Mr. Justice Ronan Keane, is an attempt to seek a meaning for the words in section 53 of the Bill which absolve the national Parliament from any intention to delegate its exclusive power of making or changing the laws.

I cannot see how section 53 can be read in any other way. It specifically says that ministerial orders have effect, notwithstanding the terms of any Act of the Oireachtas or any pre-Independence statue. To the extent that it overrides existing statute law, any such order would have to be taken to implicitly either amend or repeal it. However, the power to amend or repeal statute law is, according to the Supreme Court, a power that the Houses of the Oireachtas cannot delegate to a Minister. The Dáil cannot delegate its exclusive power to make or change the laws. In vies of this I propose this amendment. It is important because we have had so much emergency legislation.

The WikiLeaks reports that were reported yesterday in The Guardian and The Irish Times set out the mindset of Department officials at the fateful time of the bank guarantee. The material in question refers to a perfect storm, to impaired assets constituting 0.5% to 0.8% and to the fact that the media had exaggerated the difficulties in the bank. It states that the issue related to how to unwind the problem assets and that the auditors, PricewaterhouseCoopers, PwC, had a favourable impression of two of the institutions that were examined. It further states that there was a herd mentality that was based on rumour and innuendo. The herd mentality to which it refers revolved around the fact that our reputation had been shredded in the UK, in particular, and in the United States as a result of the actions of two rogue institutions, namely, Anglo Irish Bank and Irish Nationwide.

The US Government representatives indicated at the time that "it may be that government officials are being a bit optimistic in their assessment of the level of impaired assets". The term "optimistic" refers to the belief among officials in this country that the level of impairment, at less than 1%, was negligible. That kind of thinking, which was prevalent when the bank guarantee was introduced, has carried through into the legislation before the House. Those who delivered that guarantee now want us to grant the Minister extraordinary powers and to basically abdicate our constitutional role as a Legislature. The Labour Party will not do that because it is of the view that the Minister is wrong.

According to the memorandum of understanding, the legislation before the House will be replaced, by the end of February, with the type of proper bank resolution legislation required by the IMF and the EU. Why is the Minister seeking to grant himself such extraordinary powers and why does he feel no obligation in respect of this matter? The Bill contains vast secrecy provisions and when it is enacted, we will not be able to discover why the Minister took certain actions in respect of the various institutions. However, we are aware, from media reports and from the Minister's general comments, that the taxpayer will own 90% of AIB. It is proposed in the relevant section of the Bill that Anglo Irish Bank be reorganised and recapitalised. The Minister should read that section into the record in order that people might know what is to occur. Amendment No. 1 seeks to reasonably restrain the Minister from doing something which he is not entitled to do.

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