Phil Hogan (Carlow-Kilkenny, Fine Gael) | Oireachtas source

It is important to restate what we intend to achieve with this provision. The Local Government Reform Bill, when enacted, will give effect to a comprehensive reform of local government structures, functions and governance. It involves significant amendments of and additions to the existing local government code and it is possible that unanticipated issues may emerge post-enactment. This section has been designed to provide a mechanism for dealing with such difficulties should they arise and similar provisions are found in other Acts within the local government code. I do not envisage that such issues will arise and if I did, a specific provision would be included in the Bill to address them. However, it is only prudent, in the context of such a wide-ranging reform programme, to provide a mechanism to deal with any unforeseen problem that may arise.

I emphasise to the House that the use of this provision is subject to a number of restrictions. In the first instance, it is time bound and may only be used within a period of three years following the coming into operation of the section. Second, regulations made under the provision will require a positive resolution of both Houses of the Oireachtas. Furthermore, the making of regulations under this provision will be subject to rigorous oversight by the Office of the Attorney General. In addition to this triple lock, against any Minister who might try to engage in some nefarious practice in the future, the Supreme Court will act as a further bulwark against a Minister who might seek to interpret and use this provision in a way that was unconstitutional. These are fundamental principles attaching to the operation of this provision.

In addition, it is important to point out that the term "necessary or expedient" is referred to almost 900 times in the electronic Irish Statute Book. The earliest reference is in section 36 of the Public Works (Ireland) Act 1831. There are 834 uses of the phrase in primary legislation since 1922 and 284 uses in respect of delegated legislation. The phrase was also used in the District, Circuit and Supreme Court rules. Given the extensive history and continuing usage as outlined, it is unsurprising that the phrase is well known to the courts in its various uses.

I am advised, therefore, that to use a different formula of words would be open to interpretation by the courts that the Oireachtas intended a different meaning or result to that which would have obtained by using the long-established phraseology of "necessary or expedient". Equally, a seemingly straightforward substitution of words as suggested in amendment No. 4 or a deletion of the term "or expedient" as suggested in amendments Nos. 5 and 6 could result in the threshold for coming within the ambit of the provision being set so high as to make it virtually unusable. At a minimum it would significantly reduce the scope of the circumstances in which the regulation-making power under section 22 could be used.

I understood the arguments that were made by Senator Norris on Committee Stage and was certainly very open to amending this particular section. However, since then I have received extensive legal advice on foot of further legal examination of the Bill, including by the Attorney General's office and based on the precedent that was established back in 1831, I am strongly advised that any other interpretation could have implications for other legislation. Regrettably, but in good faith, I cannot accept the amendment which was tabled by Senators Norris and Barrett in good faith.