I move:
That the Joint Committee on Legislation, or a sub-Committee appointed by it, review the exercise of existing statutory powers of delegated legislation in the light of the various reports on statutory instruments made by former Select Committees of the Seanad on Statutory Instruments and the Joint Committees on Secondary Legislation of the European Communities and its own examination of statutory instruments over the initial two years of its operations; and that the Joint Committee report on whether, in order to maintain appropriate balance between the legislative supremacy of the Oireachtas and the needs of efficient Government, any special safeguards are desirable in regard to the future exercise of those powers and the delegation of such powers in future legislation.
Just about 12 months ago this House appointed a number of committees. Included in that number was the Joint Committee on Legislation. This was a new committee which was in a sense an experiment and which has been operating under the terms of reference which we gave it 12 months ago. One of the matters that was referred to that Joint Committee was the question of delegated legislation. On the occasion on which the Seanad approved the establishment of that committee, quite naturally, reference was made to the fact that the review of delegated legislation was passing from the Seanad Committee on the Review of Statutory Instruments to this new Joint Committee on Legislation.
This motion, which is being brought forward now and which has already been agreed to by Dáil Éireann, asks the Joint Committee on Legislation, or else a sub-committee appointed by it, should review the exercise of existing statutory powers on statutory legislation and should report, within a period of two years, about our experience in regard to this and make recommendations, if necessary, in regard to the future exercise of these powers. We have, of course, had a good deal of experience in regard to the review of delegated legislation. A Seanad committee operated from 1949 to 1983. We have had our Joint Committee in regard to the effect of EEC legislation on our domestic law from 1973 until now. As I mentioned earlier, the Legislation Committee itself has been in operation now for 12 months.
It is, of course, a fact of political life in this modern age that delegated legislation is unavoidable.
It is unavoidable because of the manner of the detail with which certain matters must be regulated, a degree of detail well beyond what can, with convenience, be encompassed inside statutory legislation. It is also necessary, because the nature of the modern policy is such that it is impossible to anticipate in a world which changes rapidly, not only technologically but also politically, but perhaps unfortunately not quite so rapidly socially, there are unanticipated effects. Also, delegated legislation is necessary because the borderline between legislation and administration is by no means a sharp divide. And so we have this problem that must be met.
In attempting to make a disposition of this particular problem we must take account of our constitutional position and indeed the fundamental principle which underlies the constitutional arrangement in regard to the various powers. Personally, I do not like to use the term "separation of power" because I think this is a false abstract academic principle. If we refer to "the balance of power" we are perhaps coming closer to what is reality. Indeed I would suggest that what we have in operation under our Constitution or any similar constitution is the question of an interaction of powers, a dynamic element in which the Judiciary, the Legislature and the Executive are interacting with one another. Certain areas clearly belong to one but there are interfaces between the three powers in which there is interaction. We are not concerned here this morning with the question of judicial review but we are concerned with the question of parliamentary review.
It is clearly laid down in Article 15.2 of the Constitution, as it was in Article 12 of the 1922 Constitution, that the sole and exclusive power of making laws for the State is vested in the Oireachtas and no other legislative authority has power to make laws for the State. That, of course, has been adapted in relation to EEC legislation and adapted by judicial review, but it does remain a fundamental principle.
How then, given that fundamental principle, are we to make the best possible arrangement in regard to the parliamentary review of legislation? Here we have some help. I think it appropriate that on this occasion, which we are setting up this particular review, that I should put on record the position as I see it. It is a matter in which this House should take a particular interest because this House, which is relieved from the necessity of dealing in detail with financial matters, is relieved of the necessity of dealing with matters of treaties with other countries, should properly take other areas in which it should express a particular concern. That indeed was done when the Seanad Select Committee on Statutory Instruments was established. I do not believe that this House, just because it is now the concern of the Joint Committee on Legislation, should now cease to take a particular interest in this matter.
I would like to draw attention to the fact that the position in regard to the relationship between legislation and delegated legislation is reasonably clear, and we are lucky that there have been a number of judicial cases. I would refer in particular to a case under the 1922 Constitution, the case of The Pig Marketing Board versus Donnelly, in which Mr. Justice Hanna laid down the principles under Article 12. I do not want to read this in Extenso but merely to quote as follows — I am quoting from page 75 of the second edition of The Irish Constitution by Professor John Kelly. Mr. Justice Hanna laid down:
It is axiomatic that powers conferred on the Legislature to make laws cannot be delegated to any other body or authority. The Oireachtas is the only constitutional agency by which laws can be made but the Legislature may, it has always been conceded, delegate to subordinate bodies or Departments not only the making of administrative rules and regulations, but the power to exercise, within the principles laid down by the Legislature, the powers so delegated and the manner in which the statutory provisions shall be carried out. The functions of every Government are now so numerous and complex that of necessity a wider sphere has been recognised for subordinate agencies, such as boards and commissions.
Again we have had relatively recently, in the case of the Richview Press versus AnCO, which is reported in the Irish Law Reports for 1980, a fairly clear definition on the authority of the Supreme Court. Again, I would like to place on record as the background to any discussions we would have here this morning and to any investigation that would take place under the Joint Committee on Legislation the judgment of the Chief Justice on that occasion which was unanimously assented to by his colleagues. I quote from the case of the Cityview Press versus An Comhairle Oiliúna in the Irish Law Reports of 1980:
The giving of powers to a designated Minister or subordinate body to make regulations or orders under a particular statute has been a feature of legislation for many years. The practice has obvious attractions in view of the complex, intricate and ever-changing situations which confront both the Legislature and the Executive in a modern State. Sometimes, as in this instance, the Legislature, conscious of the danger of giving too much power in the regulation or order-making process, provides that any regulation or order which is made should be subject to annulment by either House of Parliament. This retains a measure of control, if not in Parliament as such at least in the two Houses. Therefore, it is a safeguard. Nevertheless, the ultimate responsibility rests with the courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution. In discharging that responsibility, the Courts will have regard to where and by what authority the law in question purports to have been made. In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits — if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body — there is no unauthorised delegation of legislative power.
The Joint Committee on Legislation or its sub-committee will have before it this clear exposition of the law. There was a further case in December of last year, the case of Cooke versus Walsh of 16 December 1983 as yet unreported. This relieves the House from having to hear me through a further quotation.
The history of the parliamentary review of legislation goes back well over 100 years, as does the power to annul, which goes back just over 100 years. If one looks back at the history of delegated legislation, one of the first cases, if not the first case, of giving the power to either House to annul was in regard to the Lunacy Regulation (Ireland) Act, 1871. Looking at the Order Paper and the matters laid before us that are subject to annulment and looking at the jungle of statutory legislation, we may well believe that the power to annul has been well fathered by the Lunacy Regulation Act.
In regard to the question of review, we still find after 100 years and after the enactment of a Statutory Instruments Act in 1947, a wide variety of practices in regard to delegated legislation and in regard to statutory instruments. There are statutory instruments properly made but which can be certified by the Attorney General to be of such a local or a personal nature that there is no need to give notice of them in any form whatsoever. We have a second class of statutory instruments of which notice must be given in Iris Oifigiúil and which must be deposited in certain libraries. The list of libraries, incidentally, does not include the Oireachtas Library. The Limerick Chamber of Commerce is entitled statutorily to receive a copy of all statutory instruments, as is the National Library, the Legal Libraries but not the Oireachtas Library. It seems to me that this is something that might well be looked at.
In many cases there is a requirement that the statutory instrument be laid on the Table of each House of the Oireachtas, thus constituting a third group of statutory instruments. Among these there is a fourth group which are subject to annulment by either House of the Oireachtas — the so-called statutory orders subject to negative resolution. Finally, there are statutory instruments which require positive approval by both Houses of the Oireachtas and belong to the group of affirmative resolution. We have a wide variety of provisions. Anyone who looks at the statutory instruments as they pour fourth will agree that it is not always a consistent division.
There are good reasons for having a diffuse variety of provisions, but it is well worth the time of the Joint Committee on Legislation or its sub-committee to look at the question of whether they are dealt with consistently or whether there should not be criteria in regard to this. It is only by looking at this matter in general and only by establishing criteria which can be recommended by the Joint Committee on Legislation to the Houses of the Oireachtas, debated by them, approved or amended by them, that we will bring order to this. Because the volume of these statutory instruments now runs something over 400 per year, it is obviously impossible for an individual Member, no matter how enthusiastic, to be able to keep track of these, to evaluate them not only for form but also for content. It is for that reason that this House, as I have already mentioned, established the Select Committee on Statutory Instruments in 1949.
I want once again, as I did 12 months ago when this function was passing to the Joint Committee on Legislation, to express appreciation of what was done by that committee, words of appreciation to the late Senator Luke Duffy, former Secretary of the Labour Party and a distinguished Member of this House. I would like to pay a tribute also to the late Professor George O'Brien who was Chairman of that committee for 14 years. I would like to pay a tribute to the then Senator Bill Sheldon who succeeded Professor George O'Brien and was Chairman of that committee for a further eight years.
All of the chairmen of this committee not only approached this task with energy and with discrimination but they laid down a model standard of how such work should be approached. But they were hampered throughout that work by a number of difficulties. One of these difficulties was, of course, the inevitable difficulty of staff. It was not until adequate staffing was available that it was possible for the committee to do other than reach on a sample of the statutory instruments with which they were concerned.
I do not need to quote the terms of reference of that committee except to say that, in fact, those terms of reference, with one or two small changes, lasted right through the history of that committee from 1949 to 1983. They stood the test of time in this regard. I think they were taken over virtually in toto in the terms of reference of the Joint Committee on Legislation. There has been, in addition, the experience of the Joint Committee on the Secondary Legislation of the European Communities which has been operating now for over ten years. I will leave it to Senator Mary Robinson, who is with us this morning, to speak of her experience of that particular committee.
The Joint Committee on Legislation, which we established just over one year ago and to whom we are now giving this additional charge of making a review, was in its terms of reference 1 (f) asked to examine and report to each House on any statutory instrument laid or laid in draft before either House other than regulations made under the European Communities Act, 1972 and to recommend, where it considered such action was warranted, whether the instrument should be annulled or amended. The Joint Committee on Legislation has been given many other tasks to do. During the past year it has been asked to look at certain legislation and at certain proposals for legislation and is being asked at the moment to continue in that particular task. When we today ask the Joint Committee on Legislation to review this matter we should ask it to review itself and to ask the question whether, along with all the other duties it has, it can do justice to this topic. I am sure I speak for Members of Seanad Éireann when I say that, if the Joint Committee on Legislation feels that it has, apart from this duty, enough work to keep it fully occupied throughout the year I think Seanad Éireann would be prepared to resume the particular task of the review of statutory instruments.
There is a need for a thorough review, not an exhaustive examination, but there is a need for a review. The guidelines of the Seanad Committee are there and they should be reviewed. The format of various Acts and instruments could be reviewed. Some of us would like to know exactly what are the differences between Orders, Rules and Regulations. When we are reviewing legislation in this House we find all these terms being used. There may well be distinctions based on fundamental principles. If so, this is not readily apparent. There are other questions that must be examined. I tend to speak every two or three years in this House on the question of the consolidation and adequate publication of Army Regulations which are a particular form of delegated legislation. I get the answer that this is being pursued actively. This is something to which the Joint Committee on Legislation or the sub-committee appointed by it should give their attention. There is a substantial body of law here. The Army regulations constitute a body of law. It is a body of law which is largely the concern of the Army authorities and the Minister for Defence but not solely their concern. That law should be available, not just to the Joint Committee on Legislation, but to the Houses of the Oireachtas in such a form that it can be reviewed.
The Joint Committee on Legislation in making this review will have the advantage of the reports of the Select Committee of Seanad Éireann and the reports of the EEC Committee. It will also have the value of its own experience over the past 12 months. While the subject of delegated legislation has not been a subject of study or academic review by scholars in this country, I understand that Professor Stout who is Professor of Political Science in Albany in the State of New York has just completed a review of Administrative Law in Ireland. This work is now in manuscript. This review, if available to the committee will certainly give them a very good starting point. Really they will have quite an amount of working material. It seems to me that there is absolutely no excuse for them not being able to report within two years. Indeed, I wonder if in fact that time which is being given to them in this regard is not too long.
If the committee feel that with their other work they can only occasionally give time to this question, I suggest that they face this question squarely. If the Joint Committee on Legislation felt that it was impossible to do this work through a sub-committee of their own, I suggest they should have no hesitation in coming back to the Houses of the Oireachtas and seeking a change in their terms of reference and in the particular charge under this motion today whereby a sub-committee could be established which would have a core of members of the Joint Committee on Legislation but could also draw on other Members of the Oireachtas who would be interested in serving on this particular sub-committee in this ad hoc effort. I do not think it was the intention when the committees of the Oireachtas were established 12 months ago — the new committees — that their membership should remain rigid. This is a case in which we could apply a flexibility of membership, a flexibility of operation, which is certainly called for. This reconnaisance, this study, should be made. When that is done we will have the opportunity in this House of having a well-informed debate on what is a critical problem of modern political life. I recommend the motion to the House.