Parliamentary Fellowship of The Houses of the Oireachtas Role of the Houses of the Oireachtas in the Scrutiny of Legislation Dr. Brian Hunt The Role of the Houses of the Oireachtas in the Scrutiny of Legislation Parliamentary Fellowship of the Houses of the Oireachtas Dr. Brian Hunt The Role of the Houses of the Oireachtas in the Scrutiny of Legislation Dr. Brian Hunt Solicitor, BA, MLitt Inaugural Parliamentary Fellow of the Houses of the Oireachtas (2009 - 2010) Prepared in fulfilment of the award of the Inaugural Parliamentary Fellowship (2009 – 2010) at the Houses of the Oireachtas. Submitted to the Houses of the Oireachtas on 17th December 2010. Dr. Brian Hunt Preface Purpose of the Monograph The scrutiny of legislation is arguably one of the most important roles discharged by the Houses of the Oireachtas. This monograph aims to examine, for the first time, the various elements and features of the political system which have some impact on the ability of the Houses to scrutinise legislation, and to assess whether the requirements of the Constitution, as regards scrutinising and enacting legislation, are fulfilled by the current arrangements. In this way, it is hoped that this monograph contributes to scholarship on the Houses of the Oireachtas and advances the knowledge and understanding of the workings of the Houses, particularly in regard to their role in scrutinising legislation. Outline of Monograph The scrutiny of legislation is one of the key roles served by any legislature and its importance in an Irish context derives from Article 15.2.1 of the Constitution which provides that the sole and exclusive power of making laws is vested in the Oireachtas. In view of the primacy of the Houses’ role in making laws, this monograph seeks to examine the diverse factors which enhance or impede the ability of Members of the Houses to adequately scrutinise legislation. This monograph also examines a range of reforms and initiatives of recent years which have invariably served to enhance the ability of Deputies and Senators to scrutinise legislation more effectively. Separately, this monograph also examines the arrangements which are in place to scrutinise EU legislation and also secondary legislation. In what is perhaps its most novel feature, through an analysis of parliamentary debates, this monograph seeks to shed some light on: • The amount of parliamentary time which is spent scrutinising legislation; • The length of time it takes for a Bill to move through the Houses; • The extent to which opposition amendments are accepted/rejected; • The degree to which members on all sides of the Houses actively participate in the task of scrutiny. This monograph finds that, having regard to the requirements of the Constitution, the Standing Orders of the Houses, and current practice as evidenced by the record of parliamentary debates, the degree of scrutiny to which legislation is subjected by the Houses is not as effective as it could otherwise be. In that context, the monograph goes on to identify some initiatives which would enhance the ability of members of the Houses to scrutinise legislation. Scope of the Monograph This monograph is primarily concerned with the scrutiny of primary legislation by both Houses of the Oireachtas. There is some limited examination of the extent to which legislative measures emanating from the EU institutions are scrutinised and the scrutiny of secondary legislation is also addressed. The role of the Houses in scrutinising Private Members Bills is not examined, nor is the scrutiny of Private Bills. In several instances, the monograph seeks to reflect the practices and experiences of other comparable jurisdictions. Methodology This monograph is based on a reading of an extensive body materials including books, articles and official reports. A considerable degree of reliance has been placed on research conducted using the records of debates of both Houses. Data has been presented in Chapter 9 and is based on an examination of sample dates and a sample of Acts over a set period. In addition, the monograph has been considerably enhanced through discussions and engagement which I have had with current and former members of the Houses, as well as with senior officials at the Houses. The monograph also benefits from my knowledge of the parliamentary and legislative process gleaned whilst working in the Office of the Attorney General and more recently whilst working in Leinster House. i Preface A Personal Note Having previously studied legislation in great detail in the course of my PhD thesis - which focussed on the fruit of the legislative process - that I should then turn, in this monograph, to study how legislation is scrutinised and made, seems to complement my earlier research. It has been a fascinating topic to examine and I am indebted to the Parliamentary Fellowship Committee of the Houses of the Oireachtas for awarding the Inaugural Parliamentary Fellowship on this, my chosen topic. It has been an honour to have been chosen and my only hope is that this monograph is seen as being true to the objectives of the Parliamentary Fellowship. The preparation of this monograph has taken twelve months, and its completion would not have been possible without the assistance of many people. Firstly, I would like to thank Mr Justice Gerard Hogan who, up until his appointment to the High Court Bench in September 2010, acted as my supervisor for this monograph. I am particularly grateful to former Tánaiste and Minister for Justice, Michael McDowell S.C. who agreed to take over as my supervisor. The monograph has benefited greatly from their guidance and wisdom. From the outset, former Taoiseach, the late Dr Garret FitzGerald, a member of the Parliamentary Fellowship Committee at the Houses, showed immense enthusiasm for the subject-matter of this monograph which was truly inspiring. I am indebted to Maria Fitzsimons, Head of Research at the Houses of the Oireachtas who has expertly steered this project to completion. Thanks are also due to Madelaine Dennison, Head of Library and Research Service as well as the staff of the Library and Research Service at the Houses of the Oireachtas. I would like to also thank the members of the Houses who gave so generously of their time to me in agreeing to be interviewed for the purpose of my research. They include: former Taoiseach Bertie Ahern; former Government Chief Whip and Minister of State, John Curran; former Government Chief Whip, Tom Kitt; former Fine Gael whip (now Government Chief Whip) Paul Kehoe TD; and Labour Party whip, Emmet Stagg TD. The Assistant Clerk of the Dáil, Dick Caffrey, was also of particular assistance. As ever, renowned UK expert in statute law, Francis Bennion provided invaluable insights and I would also like to thank Gay Mitchell MEP and Professor William Binchy. I would also like to thank my colleagues at Zurich, in particular Arno Wicki and Chris Davidson, both of whom were very supportive of my involvement with the Fellowship. I owe a particular debt of gratitude to Henry Murdoch whose forbearance has allowed me to defer my work on updating Murdoch’s Dictionary of Irish Law so as to concentrate on completing this monograph. I would also like to thank my parents for their continued support and encouragement. I would like to thank my wife Natallia, who, as ever, has been so supportive of my involvement with the Fellowship and the inevitable time sacrifices required. Finally, in so far as it is appropriate to dedicate a monograph, this is dedicated to our wonderful children - Ryísa and Dara. ii TABLE OF CONTENTS Preface .......................................................... i REASONS FOR SIGNIFICANT LEVEL OF CONSTITUENCY WORK Chapter 1 • Re-Election • Transferable Vote Legislation and the Requirement • Centralised Model of Power for Scrutiny ................................................... 1 • Intra-Party Competition • Public Expectation • Gap in the Market TASK OF LEGISLATIVE SCRUTINY • What Constitutes Scrutiny? ELECTORATE’S NON-RECOGNITION OF ACHIEVEMENT • Article 15.2.1 of the Constitution ON NATIONAL STAGE • Article 15.2.1 and the E.U. • Article 15.2.1 and Secondary Legislation USING THE ELECTORAL SYSTEM TO ENHANCE SCRUTINY • Article 15.2.1 and the Role of Judiciary in Law-Making • Other Electoral Systems • Views of Members of the Houses NON-JUSTICIABILITY AND THE SCRUTINY • Options for Change OF LEGISLATION • Whether a New Approach Would Enhance Scrutiny ROLE OF THE PRESIDENT IN SCRUTINISING LEGISLATION Chapter 3 LEGISLATION Features of the Parliamentary System • What is legislation? Which Impact Upon Scrutiny ........................ 23 • Policy Development and Scrutiny • Government Priorities • Programme for Government INTRODUCTION • Legislation Programme • Order Paper POLITICAL PARTIES • Order of Business • Preparation of Legislation WHIP SYSTEM • Role of the Bills’ Office • Legislative Process and Standing Orders OPPOSITION NUMBER OF TDS Chapter 2 SCHEDULING OF LEGISLATION Electoral System and its Impact Upon the Level of Scrutiny .......................... 11 DECISIONS OF THE HOUSES PARLIAMENTARY GUILLOTINE INTRODUCTION • Introduction • Danger of Rushed Legislation ROLE OF TDS AND SENATORS • Early Examples of the Guillotine’s Use • Recent Examples of its Use ELECTORAL SYSTEM • Reasons for Using the Guillotine • Current Electoral System • Abridged Legislative Process • Proportionality • Rushing of Legislation at the End of a Session • Connectivity • View from the Houses • Turnover • Legal Position ELECTORAL SYSTEM & FOCUS