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.
The Oireachtas, in enacting certain pieces of legislation, often delegates its legislative powers to Ministers or to other rule-making bodies.
The wider the discretion conferred on a Minister or other rule-making body, the greater the possibility of an erosion of the constitutional function of the Oireachtas as supreme law-making authority. One must be sure that the powers are used only in line with the spirit and intention of the parent legislation from which they derive.
The purpose of this motion before the House today is to enable the Oireachtas itself to determine whether any concerns there might be in this area are valid or not valid.
The technicality and complexity of much modern legislation, and the need for flexibility will always, of course, require that Ministers do have the power to enact delegated legislation. The Governmental process, and the Dáil itself, would grind to a halt if Ministers were required to seek the specific approval of the Oireachtas before all orders, regulations, rules, schemes and bye-laws were introduced. These instruments also give flexibility to amend existing schemes in line with changing circumstances.
In making delegated legislation, the Government does not have, of course, a totally free hand. Safeguards are already built into the system. The ultimate safeguard is judicial control, by the operation of what is known as the ultra vires rule. In other words, the order can only be made within the powers delegated by the Oireachtas and the Judiciary can if their view is sought, strike down an order if it is made in excess of the powers granted to the Minister by the present legislation. The power conferred on instrument-making authorities is not and cannot be unlimited. The Supreme Court has indicated the limits beyond which the Oireachtas may not delegate its legislative powers. Other safeguards are important, however, because of the high legal costs of proving that the ultra vires rule has been exceeded.
There is inconsistency in our legislation in regard to the delegation of powers. For example, a Minister may be empowered to make a Statutory Instrument without even informing the House of the fact in some cases. Most statutory instruments, however, have to be laid before the Dáil or before both Houses of the Oireachtas, and it is normal to provide that either House may annul the instrument within twenty-one sitting days, without affecting the validity of anything previously done thereunder. Some Acts provide that a statutory instrument must be laid before the Dáil or both Houses in draft and cannot come into effect until such time as the Houses formally approve the draft. These apparent inconsistencies, the three different ways in which orders can be dealt with, without reference to the House, reference in the form of draft or by reference on the basis of an order which may be annulled, may simply reflect a sophisticated and finely tuned approach to Government administration, but it is as well to ensure, by examining the practices, that this is the case.
Under paragraph 1 (f) of their Orders of Reference, the Joint Committee on Legislation are required:
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 considers that such action is warranted, whether the instrument should be annulled or amended,
This power is a considerable extension of the powers of the only committee formerly concerned exclusively with statutory instruments, namely the Seanad Select Committee on Statutory Instruments. This later committee which has been replaced by the Joint Committee on Legislation in this Dáil and Seanad had the power merely to draw the special attention of the Seanad to particular instruments. The Committee on Legislation have the power as I quoted, to actually recommend the amendment or annulment of the orders. This is an improvement.
It is appropriate that the Joint Legislation Committee should undertake the further study recommended in the Motion in addition to the powers they already have, to which I have just referred. The time-frame envisaged for the Report of the Committee and this study is two years. This is to enable them to draw on their experience in examining statutory instruments. It will also allow them the time to study the experience of former Seanad Select Committees and of the Joint Committee on Secondary Legislation of the European Communities which is also working on the exercise of delegated powers.
We are asking the Joint Committee on Legislation to 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 which are needed or are desirable in regard to:
(1) the future exercise of powers of delegated legislation and
(2) the delegation of new powers in future legislation.
In this regard it will be necessary, in many cases, to look to the drafting of the parent statutes as well as to the statutory instruments already in force and the practice in regard to them. It is my intention that the opinion and expertise of legislators themselves should be brought to bear on this question. Indeed, we will not be the first legislature to devote attention to this matter by way of parliamentary committee report. I have seen a copy of a report based on a study of parliamentary control of delegated legislation by a study committee in the National Assembly of Quebec. Such reports will also be of benefit to our joint committee.
Given the volume of statutory instruments made, it is not possible for every one to be read by the Members of the Oireachtas. Accordingly, it is necessary for Deputies and Senators to depend upon the work of others, such as the Joint Committee on Legislation, to highlight problems and point to significant items in this area which ought to be looked at.
Furthermore, the joint committee can help ensure that the explanatory memoranda, which are presented to the Oireachtas and particularly to the Library of the House with each statutory instrument, actually explain the measure in terms that can be easily read and understood. While some explanatory memoranda are explanatory others are little more than a recitation of the terms of the instrument which may require a knowledge of some previous statute or instrument to be properly understood. In other words, the explanatory memorandum frequently says: "This is an order to amend order No. so-and-so of such a year under such-and-such an Act". Unless one is familiar with the previous order and the previous Act an ordinary Member reading the order has no way of divining what it is all about. That is not an explanatory memorandum in the spirit of the provisions and should not be accepted by the House. I hope the committee will be able, in the exercise of the powers they now have, to eliminate this practice and ensure that explanatory memoranda are simple, self-contained and widely circulated.
The committee might also look at whether specialised means are required for examining particular areas of delegated legislation. Article 15.2 of the Constitution provides that the sole and exclusive power of making laws for the State is vested in the Oireachtas. By adopting this motion today, the Dáil is publicly expressing its recognition of its responsibilities in legislative matters and its desire to ensure that these responsibilities are carried out in a democratic and efficient manner. While I have outlined some of the areas which the Joint Committe on Legislation might examine under this motion, I feel the committee would welcome any other suggestions which the House might now like to make.
