Brian Lenihan Jnr (Dublin West, Fianna Fail)

I will deal with section 53 and try to persuade the Deputy why he should not oppose it by speaking to the general issues he raised. I have dealt with the narrow issue of the amendment but wider concerns were raised in the course of the debate. It is important to note that section 53 achieves two purposes rather than one, a point which was not noted in the discussion.

First, it states:

The provisions of this Act ... have effect notwithstanding anything in—

(a) the Companies Acts, the Building Societies Act 1989, the Credit Union Act 1997 or any other enactment,

(b) any other rule of law or equity,

(c) any code of practice made under an enactment,

(d) the listing rules

and so forth.

It has a double effect. Second, it provides that an order made under the Act shall have effect, notwithstanding relevant legislation. There are two distinct objectives in this section and it is important that they are distinguished for the purposes of this discussion.

First, the reason for the extensive recitals is that the Bill reflects a banking emergency and the legislation has limited operation until December 2012 under section 69. Second, the provisions of the Bill are so fundamental that there can be no question as to its primacy over other legislation. The Oireachtas is being invited to approve this qualification of other statutes, such as the Companies Acts, the Building Societies Act and the Credit Union Act 1997. There is an implied repeal of any possible inconsistent provisions in this Bill in order that it, from a legislative prospective, can have full force and effect.

In the course of the argument it was not suggested by any Deputy that the first element was improper or wrong. The discussion was focused on the second element, as I understand it, namely the issue relating to the orders that could be made under the Bill. I am distinguishing between the two aspects of the section and suggesting that no objection was made by any Deputy to the fact that the provisions of the Bill are so fundamental that there has to be an implied repeal of other legislation in the event that there is a possible inconsistency.

The second issue is the question of the orders under the Bill. Orders under the Bill are not binding until sanctioned by the High Court. They override other legislation only to the extent that is permitted under the Bill. Deputy Higgins put the point well in his argument when he invited me to indicate if the Minister can use the powers under this Bill to repeal other legislation. The Minister cannot do that. All a Minister can do under this Bill------

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