Brian Lenihan Jnr (Dublin West, Fianna Fail)

Deputy McDowell is the Minister, but the Bill was piloted through the other House by the Minister of State, Deputy O'Dea, and me and it seems fated to be piloted through this House by me.

There was a suggestion by Senator Terry that a grave abuse of ministerial power had been uncovered by the courts. However, in the Corish judgment – the decision of Mr. Justice O'Neill, to which Senator Terry, very fairly, referred – which was delivered on 13 January 2000, the Minister and the Department were faulted on a very technical point. The point at issue was that the Minister had drawn up regulations to exercise his powers under the 1960 Act and had expressly excluded certain offences. He had said he would never consider temporary release for certain offences. That is a reasonable step for a Minister to take but the view of the High Court was that the 1960 legislation, the parent Act, did not empower the Minister to impose that type of restriction by regulation and, hence, the regulation was invalid.

Lawyers can be lawyers and jurists can make points and I do not question the correctness of that judgment. However, it is a technical point of statutory draftsmanship to fault the Minister for regulations drawn up on that basis where, clearly, successive Ministers of many different political colours acted in good faith in administering this system and did so for the protection of the public. The High Court was telling us – it is a fair point – that we should have dealt with this matter in primary legislation and that it was not an appropriate matter to be regulated in detail by ministerial regulation. Most speakers accepted that point today.