I move amendment No. 5a:
In page 7, before section 3, to insert the following new section:
"3.—The Oireachtas shall enact such further Acts as are necessary for the general purposes or for any particular purpose of this Act.".
This amendment is at the centre of the concerns many of us have with this Bill. This section deals with the way in which the Minister is given powers to make a number of provisions in every part of this Bill. They are wide-ranging powers some of which take back powers which the Bill appears to give to the local authorities. Basically, these powers are given to the Minister by regulations or orders which have to come before the Houses of the Oireachtas. These regulations or orders are in two forms. The first is the form in which a draft regulation or order is laid before the Houses of the Oireachtas and it becomes effective, unless within 21 sitting days either or both Houses of the Oireachtas annul the order or regulation. The second form is the active form of those regulations or orders in which a draft is laid before the House and the order or regulation comes into effect only if the Houses of the Oireachtas pass it. Of the two forms I prefer the second.
As a parliamentarian, as a democrat and as one who has experience over some years of bringing legislation before this House I know how convenient these forms of orders and regulations are for the Government and how inconvenient they are for the Houses of the Oireachtas and for the process of democracy. They have their place in the scheme of things although we should have a rethink about them. There are a great many matters that come before this House on which we are required to legislate but where there is clearly a function which devolves on the Government and the administration of the day to carry them into effect. We have not yet gone deeply enough into the distinction that needs to be made between the legislative function and the executive or administrative function. These orders and regulations are not the appropriate way of doing that in all cases. I see some point in them, in matters of detail, and I am not being insulting to the Minister or the Government when I say, in the full knowledge that I have used these instruments in the past, that it is unwise of a legislative assembly to leave too much to Ministers. It is unwise for legislative assemblies to get too much into the nitty-gritty of day-to-day administration, but these orders and regulations are not the way to draw the line between what is appropriately a legislative function and what is properly an executive or administrative function. They are a very blunt, unsatisfactory instrument.
If we have to have orders or regulations of that kind, I prefer the active kind. I instinctively react against a system which says that something which the Minister or the Government might want to do will be done unless within 21 sitting days the Houses of the Oireachtas decide otherwise, because in practice that leaves very little margin to the Houses of the Oireachtas, and it invites the Houses of the Oireachtas who may be preoccupied with other things and inclined to be lazy about going into the detail of legislation, to let legislation go through by default. That is not in the interest of democracy nor in the interest of good legislation or good administration. Of the two forms of regulation or orders I have a clear preference for the active kind. I am not betraying any confidence when I say that during the time when I had the honour, as a Minister, of bringing legislation before this House, I argued, not always successfully, in favour of using the active form of those instruments rather than the passive form, if only for the reason that I believed we should do this House the honour of requiring it to express a view before action was taken.
I know the basic nature of the provision being made here is standard in legislation. It is to be found in legislation of all kinds that comes before us, and if the Minister is well briefed, he probably has a raft of precedents to quote to me. My reaction would be to say: "So what?" These are not good intruments. I do not think that the fact that our legislation from 1922 to date is littered with such instruments is good reason for continuing with them. At a time when two intergovernmental conferences to do with the future of the EC are considering the very question of a hierarchy of laws and instruments to be enacted by the Council of Ministers and the European Parliament on proposals from the Commission, we should at least be thinking of examining our own legislative process in the same way.
Those two forms of instruments are not satisfactory ones either from a legislative point of view or from a democratic point of view. That reservation applies with even greater force to the Bill under debate. I do not like those forms of instruments — they are unsatisfactory and they are undemocratic. If they do have any relevance in our legislative and administrative process, then they are surely relevant only to matters of the detail of implementation of the legislation. One could stretch a point and say that in that kind of context they may have a place. However, they most certainly do not have a place in a Bill such as this, which sets out, as the Minister says, to bring about reforms to local government. In fact, the Bill provides for a series of cosmetic reforms to local government but accompanies each one of those cosmetic reforms with an instantaneous power for the Minister to set aside that apparent reform — that is found time after time in the Bill. On every occasion that a new power is apparently given to local authorities with the one hand it is taken back with the other hand, in that the Minister is given power to make regulations or orders that direct, constrain, or prevent local authorities from using the new power apparently given by the Bill.
The circulated sheet setting out my amendment includes the statement that acceptance of the amendment involves the deletion of section 3. That is quite true, but it does much more than that. Not only does the amendment require deletion of section 3, it would also require substantial consequential amendments to sections 9, 12, 24, 31, 33, 34, 40, 41, 43, 47, 51, 52 and 53. I list those sections not in the interests of boring the pants off Members but to illustrate how completely infused is the Bill with that particular way of giving the Minister extra powers — powers of interference and powers of direction.
As I said earlier, when speaking to a previous amendment, much of what is proposed in the Bill to be carried out by order or by regulation should not be carried out in that way but should be done by bringing Bills before the Houses of the Oireachtas so that law is made. It has been established earlier this evening that in the setting up of the three new local government structures for Dublin the Minister intends to go further than the Bill suggests and to bring in new legislation, in spite of the fact that under the Bill he has comprehensive powers to make orders and regulations.
For the record of the House I should like to point out how much it just means to review the appropriateness of those regulations and orders. The first section to be affected, which would have to be extensively rewritten on foot of my amendment, is section 9. Section 9 deals with the transfer of certain functions to local authorities. The Bill provides new functions to local authorities, yet it allows the Minister, by regulation or by order, to interfere with those new functions. In section 9 is found an animal unfamiliar to me. In section 9 one finds reference to "provisional orders". I do not know the difference between provisional orders and plain, simple, straightforward orders, but it seems that this is one instance in which the Government think they might want to secondguess themselves after a while and change their mind about an order. The section gives power to the Minister to transfer, not to transfer, or to take back powers, transferred to local authorities by order. I think — and I hope that Deputies will agree with me — that the business of giving new powers to local authorities is so fundamental and so central to the reform of local government that it should be done in a way that requires the House to think very carefully about it and about which the Minister should not be able to change his mind six months or a year later.
Members should not forget that the Bill contains an omnibus provision, a catchall provision, that allows the Minister by order to revoke or vary any regulation or order previously made under the terms of the Bill. The Minister always has the power, by passive order in the House or by active order, to change his mind.
Section 12 deals with the designation of local electorate areas in county boroughs. Again that seems to me to be a matter for legislation rather than for the making of orders.
I shall have to hurry now, I do not have much time because of this guillotine. Section 24 is one of the sections dealing with reorganisation and the creation of three new local authorities in Dublin. Members have already learnt from the Minister that he intends to introduce legislation in that regard, and I am glad to hear that. I hope that he does not change his mind about it.
