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Explainer: How can ministers sign laws without Dáil approval?

How come some laws – like the ‘Irish SOPA’ – can be signed into law without being passed through the Oireachtas? We explain.

Alan Shatter and the UK's immigration minister Damian Green sign a new bilateral deal. How do ministers get the power to make new laws without the approval of TDs?
Alan Shatter and the UK's immigration minister Damian Green sign a new bilateral deal. How do ministers get the power to make new laws without the approval of TDs?
Image: Sasko Lazarov/Photocall Ireland

THIS TIME LAST WEEK there was a reasonable chance that you’d never heard of a ‘statutory instrument’ – but with the furore that has surrounded new proposals for laws dealing with online copyright, you might have heard of them now.

Although commonly used, statutory instruments are little-known – most probably because we never see clips on the news of our TDs roaring at each other over their effects.

But they’re used to create laws far more regularly than the traditional ‘Act of the Oireachtas’ – and they don’t need to be sent to the Dáil for approval either: they can be signed into law by the stroke of a minister’s pen.

So how does that work – how can ministers make laws that don’t need to be approved by our TDs in the first place?

Allow us to explain.

Three branches

Fundamentally, government in Ireland – and in most countries – is split into three branches: the executive (ministers), the legislature (the Oireachtas) and the judiciary (the courts and judges).

In theory, it’s the legislature which is meant to have the most power: the courts, with some small exceptions, are created in laws passed by the Oireachtas – and so are the Departments which ministers use to enforce their powers.

For example, when Enda Kenny appointed Brendan Howlin to be the new Minister for Public Expenditure and Reform, he had to bring forward a new Bill creating that Department, which didn’t exist at the time.

That law were ultimately tabled by Michael Noonan – who, as Minister for Finance, was giving some of his powers away to this new Department – and, having been passed by the Dáil and Seanad in June, was formally signed into law by President Mary McAleese on July 4.

Similarly, when Ireland became the Free State in 1922, it decided it wanted a new courts system – so the Oireachtas passed a law in 1924 creating the High Court and Supreme Court which we still have today.

So, as you see, the Oireachtas is (in theory) the most powerful branch of government. But having to give its approval to every single thing would mean a ridiculous workload, so it delegates those powers.

Creating County Councils? There’s an Act for that. Supervisory bodies like, say, the Food Safety Authority of Ireland? There’s an Act for that. Pawning off the responsibility for Ireland’s airports to a semi-state airport authority? Yup, there’s even an Act for that too.

The People > Oireachtas > Everybody Else

The thing that you mightn’t have realised before is that, in a similar way, the Cabinet itself is an offshoot of the Dáil. (It naturally doesn’t feel like that these days, given how the Dáil is often merely a tool to rubberstamp the ministers’ proposals, but that’s how it is.)

In fact, such is the power that the Dáil has over the cabinet that it’s written into the Constitution:

Article 28.4:
  1. The Government shall be responsible to Dáil Éireann.
  2. The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government. [...]

So, in their own way, the powers that ministers derive – although they’re mentioned by name in the Constitution – are limited by the Acts that the Oireachtas will pass in the first place. A minister can only act in powers given to them.

But, as we mentioned above, sometimes it’s simply too cumbersome for the parliament to have to pass Acts to grant every power: and so, just as it does with courts and county councils, the Oireachtas delegates some of its power to ministers.

And how does it do that? Well, that’s where we start getting to Statutory Instruments.

‘Conferred by Statute’

A Statutory Instrument (or, in the political parlance, ‘SI’) is a tool given to ministers under another one of the Acts of the Oireachtas: the predictably titled Statutory Instruments Act, 1947. The power existed beforehand, and was inherited from the political system we inherited from the UK, but was updated and formally codified in the 1947 Act.

That law defines an SI as being “an order, regulation, rule, scheme or bye-law made in exercise of a power conferred by statute”. It’s that last bit that we’re concerned with here: the ‘conferred by statute’ part.

This means that ministers aren’t let totally off the leash – the powers they have are defined in Statute: or, in other words, an Act.

One of the things you may never have realised about the Acts passed by the Oireachtas is that they include small clauses which delegate power to ministers (or, sometimes, other statutory agencies like the Revenue Commissioners, which has the authority to collect taxes on behalf of the government).

So, for example, the laws which govern the rules of the road – most prominently the Road Traffic Act 2004 – contain a section which states:

The Minister may make regulations prescribing any matter or thing which is referred to in this Act as prescribed or to be prescribed.

Or, in plain language: ‘Wherever there’s a power created in this Act where there is a blank to be filled in, it’s up to the Minister to fill it.’ And among those blanks is Section 4:

The Minister may make regulations prescribing a speed limit (“ordinary speed limit”) in respect of all public roads, or all public roads with such exceptions as may be specified in the regulations, for any class of mechanically propelled vehicle.

So, the Minister (in this case the ‘Minister for Transport’ – that’s defined elsewhere in the Act) can set speed limits. That’s the Minister’s power, and the only way to take the power off them is if the Oireachtas passes another Act which gives it to someone else.

And ergo, the Minister for Transport – in this case Martin Cullen, who held the role between 2004 and 2007 – was able to sign an SI in 2005 which defined the ‘ordinary speed limit’ as 80 kilometres per hour.

And therefore we have a situation where individual ministers have the power to create laws without needing the approval of the Oireachtas – it’s because the Oireachtas has already given them the power.

North Korea, signal jammers and Ministerial Mercs

So that’s how it works: and it’s a power that’s used relatively often. The excellent Irish Statute Book website, which carries copies of all Acts passed by the Oireachtas since 1922, includes a full section of SIs where you can keep tabs on them.

Last year there were 739 SIs issued – taking care of all manner of things, such as prohibiting trade of nuclear paraphernalia to North Korea, making it illegal to import or sell signal-jamming equipment, and giving ministers the right to use bus lanes for their cars.

Seán Sherlock’s law on online copyright will take a similar form – using powers granted under the European Communities Act 1972, the law which formally make Ireland a part of what we now know as the European Union.

That Act specifically states that laws of the EU will be binding on Ireland – and that ministers have the power to issue SIs if they’re needed to bring Ireland into line with European law.

And that’s precisely what Sherlock is aiming to do now – to bring in a new law which brings Ireland in line with an EU directive.

In full: Seán Sherlock’s draft proposals for online copyright law >

Read: Cabinet approves plans to scrap up to 3,000 old and obsolete laws >

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About the author:

Gavan Reilly

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