Gavan Reilly

Politics by Numbers is a new series for The Journal where broadcaster, author and spreadsheet stan Gavan Reilly takes a data deep dive into a political point of the week. 

IT’S 13 YEARS this week since I departed the full-time staff of this publication. Yet, I’m often approached – and often bewildered – by the seeming half-life of some of the pieces I wrote here.

Civil servants regularly admit to consulting a guide I wrote in early 2013 outlining, literally, how a Bill becomes a law. You might think civil servants are all familiar with this process, but not all of them are bureaucrats, and not all of them are intimately comfortable with the minutiae of how cerebral ideas take on the force of law. Those who are new to the field are often referred to my 2013 explainer to understand the process.

Of a similar variety is another explainer, from 2012, about how a lot of law becomes law without actually going through this process at all. This latter piece discussed the lesser-known phenomenon of ‘Statutory Instruments’ (SIs). That explainer is there if you want to delve in further, but suffice to say, SIs more technical pieces of law issued by ministers to fill in the gaps of the Acts passed by the Oireachtas.

There are a couple of crucial things to know about SIs.

Firstly, while they might be a lower class of law (they are “secondary legislation” in official parlance), they still have the power of law and are fully binding within the State.

Secondly, ministers don’t just have the power to issue SIs willy-nilly: they can only do so where the Oireachtas has already granted them this authority. Sometimes the rules of the road are amended by SI: this is only possible because some earlier version of the Road Traffic Act, debated and approved by TDs and senators, specifically granted this power to the Minister for Transport.

Now that you’ve had this crash course on legislative civics – and now that Ireland has assumed the rotating presidency of the EU Council – it’s time to discuss the single law responsible for the bulk of Ireland’s new legislation.

Enter: the European Communities Act 1972.

European law > Everyone else’s law

One of the basic tenets of life in Europe, ever since a groundbreaking ruling in Italy in 1964, is that European law is supreme to the law of individual countries. Membership of the EU is a two-way street: yes, you get input into the decision-making process, and you willingly pool some of your sovereignty with the Union’s other members. The flipside is that the laws Europe chooses to make, are laws you are required to implement.

Back in 1972, when Ireland joined the European Economic Community, the powers of the EEC were relatively limited, so there were precious few areas where Ireland would need to offer subservience to Brussels. Nonetheless, the Oireachtas gave effect to Ireland’s membership with a law that also stipulated, where necessary, that Irish ministers could issue SIs where necessary to bring Ireland into line with European rules.

This isn’t always done by stealth. When GDPR came along, the task of translating the onerous new European rules around data privacy into Irish law was done through the Data Protection Act 2018, which went through the Oireachtas the same way that most laws do.

But often, aspects of EU rules are simply translated into Irish law through an SI – a team of civil servants drafts up an SI which mirrors the European decision, and the appropriate Irish minister signs it. And because the European Communities Act 1972 both requires and permits Irish ministers to ensure our compliance, it simply becomes law as soon as a minister signs it.

And the number of times this has happened is quite striking: as of the time of writing, no fewer than 5,762 pieces of European laws have taken effect in Ireland through the simple stroke of a pen.

A busy production line

That’s not to cast aspersion on the merit or legitimacy of those laws: they’re increasingly used to give effect to sanctions against international miscreants, which is hardly contentious. When the EU adopts sanctions against Russia, as it has done 20 times, they are applied in Ireland through an SI. Other recent SIs have stipulated how member states should collate stats around overseas travel, and (this is not a joke) the exact rules around the marketing of honey.

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Nor should it be inferred that these laws are somehow being foisted upon Ireland as a helpless bystander. Ireland does get input into the decision-making: packages of sanctions, for example, need unanimous signoff from all member states to begin with, and in general any new European law gets signoff from both the Council of Ministers (where Ireland is represented at cabinet level) and the European Parliament (where Ireland is represented by 14 MEPs).

But what’s striking is that once these decisions have been made, by the collective representatives of the 27 member states, how little scrutiny there is of the final product.

This is something that some in Leinster House have tried to address in recent years. The Seanad – an underemployed chamber, a solution constantly in search of a problem – often offers itself as a dedicated scrutineer of draft European laws, and has previously set up bespoke committees hoping to conduct deeper scrutiny of draft SIs before they are signed into effect. The last such attempt ran into the ground: officials were seemingly willing to discuss the impact of SIs after they were drafted and baked into law, but not beforehand. 

But given how many of our domestic laws derive from Europe – 26% of all SIs last year were direct impositions under European laws; the figure can sometimes be higher – it’s merely worth dwelling on how they simply get rubber-stamped into existence in Ireland without any fanfare or follow-up scrutiny.

There are other ways for the Oireachtas to raise concern or scrutinise European plans; the Lisbon Treaty included a ‘yellow card’ mechanism where national parliaments can raise concern if a new proposal is an unwarranted interference on national autonomy. Ireland has only ever used this once, back in 2012. Likewise, only once (in 2013) has there ever been an attempt to annul or overturn the imposition of European law in Ireland – and the concern there was how the law was being implemented, not the merit of the law itself.

As Ireland takes centre stage in the international process of drawing up these laws, maybe those of the media should push ourselves more to follow the process as it goes along – and not just take tallies of the finished articles presented to us.

Gavan Reilly is the Political Correspondent for Virgin Media News and the host of Monday with Gavan Reilly, which airs every Monday at 10pm on Virgin Media Play and Virgin Media One.