Amendments Nos. 6, 23 (a) and 24 are related and may be discussed together. Is that agreed? Agreed.
SECTION 3.
I move amendment No. 6:
In page 5, subsection (1), line 23, to delete "section 5" and substitute "section 5, 9 and 10".
I await the Minister's response.
Amendment No. 6 relates to section 3, while the later amendments relate to sections 9 and 10. These amendments relate to orders made by the Minister. Section 3 (1) states: "The Minister may by order revoke or amend an order made by the Minister under any provision of this Act other than section 5." Section 5 has one provision, the establishment of the appointment date. It does not make sense to require that to go before the Dáil.
Deputy Dukes wishes to add the same type of restriction to section 9, which relates to the functions of An Bord Glas in regard to export marketing of edible horticultural produce being transferred to An Bord Bia on the establishment day. Section 9 relates to other functions being taken on by An Bord Bia. The one of interest here relates to an amendment tabled by Deputy Molloy relating to the export marketing functions of Bord Iascaigh Mhara.
Section 10 states: "The Minister may by order assign to the board such additional functions as the Minister considers to be incidental to or consequential on the functions assigned to it by this Act. "Effectively — apart from section 3 (1), the amendments seek to ensure that any changes made subsequent to the establishment date by the Minister in relation to taking on new or incidental functions would have to be placed before the Dáil by way of order and need its positive approval. That type of provision relates to most of the Act, there must be positive approval by the Dáil but in this instance the existing provisions are adequate.
I do not want to deal with Bord Iascaigh Mhara before we come to it, but whatever would be included in the legislation by way of order would have to be agreed by the two Ministers and comply with section 10, which is a tidying up provision. If anything was left out that was required in terms of the marriage of the new functions, the Minister could, without having to go through a drawn out process, make the adjustments. I ask that these amendments not be pursued.
I thank the Minister for his reply. The overall point made by these amendments is that virtually all orders, unless there is a very good reason for an exception, should be by way of affirmative resolution of the Dáil and the Seanad. There is major concern in our party about the amount of secondary legislation now being enacted by way of order. The only democratic input is by tabling an annulling resolution which can only be taken in Private Members' Time and which, effectively, is never reached. Many of these orders could be laid before the House during the summer months when the House is not in recess. Effectively the Opposition party would not get the opportunity within 21 days' sitting to annul the resolution unless it waited three or four months for the autumn to have the matter sorted out.
I do not argue with a lot of what the Minister says, he has a number of affirmative resolutions in the Bill in certain sections, more than has been the practice to date, and I commend him for that. However, I want to put on record the extent of the concern in our party - and I suspect throughout other Opposition parties - about the amount of secondary legislation enacted. This increases the democratic deficit in that there is no input from the Opposition, no vote is taken. The extent to which this procedure is now used is unacceptable.
Deputy Dukes's amendments are really to extend the affirmative order procedure a little further than the Minster has already done in this Bill. A very important point is being made. I fear we are talking to a Government that does not want to hear about the problems of the democratic deficit. It has a 33 seat majority and legislation can be marched through both Houses with little regard for the opinions of the Opposition. If the Government intends to extend its mandate to the point that legislation will be implemented by way of laying orders before the House without giving the Opposition parties the opportunity to respond, democracy is being thrown out the window. That is Deputy Dukes's motivation in tabling these amendments and why I was awaiting the Minister's response in relation to how he handles this whole area.
I debated this issue with Deputy Dukes in the context of another Bill and feel I am achieving what he wanted. However, I am not sure that he has achieved it in the wording. Under section 3 (1) the Minister may, by order, revoke or amend an order made by the Minister under any provision of this Act other than section 5. That means that the Minister may not revoke or amend anything relating to section 5. Deputy Dukes then adds sections 9 and 10 which would have the effect of tying the Minister's hands in perpetuity. That is how I read the amendments. When I responded to them it was in the context in which I felt they were put down.
I accept what the Minister is saying, but there is an overall principle which needs to be put on the record at every available opportunity. If the wording of Deputy Dukes's amendment is not achieving what he intends, naturally they will not be pressed, but the overall story needs attention.
I recall Deputy Dukes saying something on Second Stage, I may be misquoting him here, to the effect that the Minister could not be coming back and forth with bits and pieces of changes which were not really consequential. That may be the thinking here as well but the fact that I do not have the benefit of his thoughts means that I cannot respond as fully as I would like.
I am concerned about the modus operandi recurring where a Bill is debated at length, comes to Committee and has various let out clauses which enable a Minister to make decisions subsequent to the Bill, bring in regulations, change aspects of a Bill and determine its direction without having to come back for the imprimatur of the Dáil or the Houses of the Oireachtas. It is very unsatisfactory.
In the last session I managed to stop secondary legislation going through because it required a resolution of the House. In normal circumstances it would have been passed, but in this case the fact that I was able to stop it meant that bad law was not implemented. I was very glad to be able to do it. The Minister at the time did well out of the fact that it was stopped. There is a general principle that it is better that further secondary legislation should automatically come back through the system. The other way does not function. Realistically it is not usually possible to come back with an annulling order, it does not work.
We should remember that this Government heralded a new era of transparency and accountability. Things were going to be different but they do not seem to be. The Government seems to be quite happy to have this way of dealing with issues, changes or detailed matters that have to come up without any reference in real terms back to the Houses of the Oireachtas. It is not just in health, in agriculture, it is in the area of the environment.
There was uproar over various changes in the planning procedures and I can see no real argument for them apart from the fact that the Minister does not want to have to be caught over the summer recess if he wants to proceed with secondary legislation. That is not a good enough reason. We are here to do the business, we are here to improve matters and there should, in recognition of the role of the Opposition, be a procedure which enables us when necessary to ensure that things are done right. That opportunity is lost to us with this other procedure with is simply cosmetic. It does not work in reality.
I support the motion in Deputy Dukes's name. I wish to again raise the point he raised on a number of occasions when Bills were before the House where the Minister was granted the power to make orders in this fashion. One of the points Deputy Dukes consistently made is the difficulty for the Opposition in getting the opportunity to challenge any of these orders. The Government has consistently refused to make time available to the Opposition where it may have wished to oppose an order and there is no opportunity for the Opposition to fulfil the powers given to it in the Bill in relation to challenging them. That is undemocratic. It has been brought up consistently during the course of debates over the past two years.
I support Deputy Dukes and I hope the amendment will be pressed in order to bring it home to the Government that there is a major democratic deficit in the way we operate our procedures in Leinster House. The Minister is getting inordinate power in the Bill whereby he has authority to make orders which increase the powers of the Bill and is enabled to fundamentally alter many of the provisions in the Bill subsequent to its being passed by way of this open ended system. I am opposed to that. The Minister might consider this matter by way of amendment to Standing Orders where time would be made available to enable the Opposition to oppose these orders, or by adopting this amendment which would give the House opportunity to debate the matters before they came into law.
If the Dáil goes into recess in July and does not come back until the end of September the Minister could make several orders during that period which would come into effect but would not be retrospectively approved by the House until 21 sitting days had passed. However, they would pass quickly because there would be no opportunity for the Opposition to challenge such an order. There is a major difficulty as to how we do our business and the powers Ministers are giving themselves in Bills which enable them to go far beyond the terms of the Bills themselves. Something will have to be done about this. I support this amendment.
I support the principle of the optimum amount of democracy operating in the Oireachtas. A sense of balance also has to be achieved. When things are inconsequential I do not believe we should have to go through an affirmation process. There is a basic difficulty with the amendment. If it was passed in its present form it would have the effect of preventing the Minister from revoking or amending an order made under sections 9 or 10. That is not desirable. Bearing in mind what Deputies have said I am prepared to have another look at this for Report Stage and I will come back to it.
Amendment, by leave, withdrawn.
Sections 3 to 5, inclusive, agreed to.