Michael McDowell (Dublin South East, Progressive Democrats)

Regarding amendments Nos. 5 and 6, subsection (1) is a standard type of provision for the making of regulations on an ongoing basis. Subsection (2), on the other hand, is an exceptional and time-limited provision designed to deal with any unforeseen difficulties in implementing the Act or other statutes it amends. Any modifications made to such regulations must be in conformity with the purposes, principles and spirit of the Act. In this sense it is not simply a general licence to the Minister to modify the Act by legislation. Many existing statutes contain a similar limited safeguard provision on these lines and I can see no constitutional reason to remove subsection (2).

If this subsection were used in a manner that violated the principle or purpose of the Act it would be subject to judicial review and the Judiciary would be keen to prevent the Minister from perverting the meaning of the Act. It is customary in broad-ranging reforms of this kind to make provisions like this, rather than allow the whole edifice fall flat owing to an unforeseen difficulty. This is frequently done in other major reforming statutes.

While considering Senator Tuffy's amendment it became clear that some matters would be more appropriate for rules of court. Arising from this I tabled amendments Nos. 44 and 46 which provide the detailed rules for the registration of both judgments and lis pendens will be set out in future rules of court rather than in regulations under section 5.