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Debate on motion of confidence in Ceann Comhairle Verona Murphy begins in the Dáil
Jury takes three hours to convict Daniel Blanaru of murdering his partner Larisa Serban in 2022
Parents banned from driving kids to four schools' gates in new Dublin initiative
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? Sasko Lazarov/Photocall Ireland
Explainer
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.
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.
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.)
The Government shall be responsible to Dáil Éireann.
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.
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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.
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.
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@Artur Gurta: Ha ha. People who believe the tripe Casey is spouting are not the sort of people who actually vote. Casey will be lucky to move past 2% of the vote
Journal, Can you please stop reporting this drivel and get back to Krispy Kreme in Blanch. We have no idea how long the queues have been all week for Christ sakes.
President Higgins could fly the government jet to New York with his dogs on board and have them pampered and groomed in some of new York’s finest dog groomers courtesy of the tax payer and the people of Ireland will still vote him in because he has been a great statesman for this country.
@Martin Brennan: if he was really so interested in screwing the tax payer, and nothing else, why has he given back to the state around 100k a year in pensions he is entitled to, every year for the past seven years?
@Dermot Lane: Shush now Dermot, we can’t let facts get in the way when good ol’ prejudice is much more fun. Don you not know how mob mentality works…!?
@PaulineSmith: Irish people wear blinkers where politicians are concerned they screw the tax payer for every expense going and we loose our marables and suspend our faculties defending whatever party or politician we support. MD has a sense of entitlement and is smug about it- the only reason he will be elected is the fffg combination want th spare their slush funds for the general election early in the new year
@Martin Brennan: as a dublin taxi driver now and again I have had over the years ferried politicians on occasions and have witnessed there disregard for tax payers money first hand.
One leader of a political party I brought out to tv 3 in ballymount an hour before she was due on set because of make up purposes. She then insisted that i wait with meter running until her (not live) interview was complete.
Another occasion I had a politician chasing letters of recommendations to the Senate around the four corners of the city at a cost of over 180€ and this was recovered by said politician. Gravy train
@Eugene Conroy: The reality is the cosy cartel in the media won’t print these types of extravaganza as they are net beneficiaries of politicians wining and dining
Joan Freeman wants to promote wellness and mental health and yet voted in favour of young, vulnerable women having to travel abroad for bodily autonomy?
@Rochelle: I’m questioning whether her vision of wellness matches that of the public as it seems to be something more spiritual than based in reality. How else could someone with such a priority in the area of mental health not see the incredible psychological damage and even loss of life that the our archaic abortion laws had caused for decades?
@Rochelle: The rate of suicide is lower among women who carry pregnancy to full term than those who have an abortion. So maybe check your own expertise first.
Mute Travellers Are Over-represented In Irish Jails
Favourite Travellers Are Over-represented In Irish Jails
Report
Oct 23rd 2018, 11:35 PM
@John O’Keeffe: she makes 100 grand a year, pays tax, gives Sinn Fein a chunk (they’re funding her campaign!!) And thinks by keeping 48k she’s on the average wage!!
I want to know if as president will she still keep 48k and give Sinn Fein the rest?
Jesus I admired Casey during the week by speaking his mind but god he’s just terrible at public speaking. He can barely string a sentence together. Quality of candidate is so poor. They’re arguing about irrelevant minor issues instead of important issues
@Declan Edward: Maybe, but I think that depends somewhat on his schedule for the rest of the day. I genuinely don’t believe the use of the jet is an issue.
@Declan Edward:
The Government Jet has to be maintained in top order at all times , the pilots have to clock up flying hours , in order to do this. Would it be better just to fly the jet empty around Ireland’s Air Space to give it a run or to occasionally use it to bring the President to an engagement . Hot air about nothing.
@RockyRockStar: If Higgins is repeating what his staff told him, it’s hardly a lie, is it…?
Also, if the jet is necessary for state affairs and emergencies and is within the purvue of our security forces who need to maintain legal licencing and a state of readiness, then it is a security issue.
Imagine the scandal if it turned out the pilots were unlicenced to fly the thing or it wasn’t properly maintained?
Can’t you find an actual reason that stands up to scrutiny as to why Casey is so much better than Higgins…?
Ni Riada pays €40k in tax and gets €60k take home.That’s a salary of €100k, not €75k. Plus she gets up to €50k in expenses.
€150k per year is over 4 times the average industrial wage. She’s a bit loose with the truth.
Can’t wait for Friday and the end of this election,it is boring beyond words and worse still we knew the outcome from the beginning,but still we are subjected to the stage shows which only serve to remind us how unsuitable the candidates are and how ill acquainted they are with the office of President and its functions,Michael D need not bother pack for another seven years.
You’d never think rte are on Micky D’s side ,, don’t call a liar a liar please ,, David McCullagh should be sacked for the way he has started this debate
Unreal how biased the media are to Higgins it’s time we moved away from the establishment Higgins comes across as a very pompous person totally out of touch a complete puppet for the government it’s time that this great nation of ours moved forward and give one of these candidates a chance to make a difference
@Dermot Lane: the only established candidate is Higgins backed by all parties but sinn Fein it’s time we as a country move away from this Higgins comes across as a privileged pompous individual and it’s time that a real person can take office and try make a difference
@Martin O Donnell: I think you need to take the blinkers off there, as regards the other candidates. Casey is running for the highest office in the land and he doesn’t even pay taxes here. Ni Riada got caught out in a lie about her salary. Of the other 2 Dragons, one was born into a privileged background and the other is FF light. Joan Freeman, while I actually think she is sincere, is backed by a dodgy businessman and seems clueless as to the constitutional role of the president. Take your pick.
@Dermot Lane: All true, except you neglect to mention Michael D’s significant shortcomings. Shady expenses and extravagance in the job, pretentious waffling as par for the course, a penchant for leftist dictators abroad, the list goes on.
Absolutely none of the candidates are fit for the office.
@ihcalaM: yes, I was clearly talking about the other candidates besides MD H, as I say in the comment, which was in response to someone called MD H ‘priveleged’
What business does sean Gallagher have saying in an interview about Michael d Higgins getting a jet from Dublin to Belfast. Trying to get the people mad so we will give him a vote. Bore off.
Thankfully Michael D changed his mind and decided to run. Having any of those other 5 as President would be a serious embarrassment for the country. Ironically he is head and shoulders above them.
@CrabaRev: We had a “Gerry Adams type” last time out and he was also a complete waste of space. He didn’t even know where he wanted to be president of. Bertie Ahern????? Get a grip.
All the real polls ( the journal polls are not accurate because they are only made up of respondents who are on the website, not random samples as used by polling companies) put Michael D at between 68-70% while his closest contender, Gallagher is in the teens and Casey is around 2%. I
@Dave Harris: And if you read those results accurately you’d know that the polls were conducted before Peter Casey made his remarks, after that he shot up in popularity.
@Rachel O’ Meara: would ya go way outta that if someone gets elected president for calling tinkers trespassers we’re in some state as a population. I doubt he’d make 10%. Or I’d hope anyway.
@Bilbo Baggins: Did I say who I was voting for? I just corrected another commenters claim that he was still at 2%. He has gained alot of support, he’ll definitely end up with more than 10%, judging by social media platforms, news comments sections, online forums and hearing people on the street talking it’ll be close.
@talksense: I was just putting up all the candidates to be fair. Although, I would sooner vote for Liadh than Gavin or Joan. One of the main reasons Liadh won’t get my number 1 is her Sinn Féin ties.
@PaulineSmith: but instead the want a millionaire like MDH!!! Go on, it’s time for a change,
People are forced to retire at 65, but this man wants a second bite at the cherry
@PaulineSmith: I’m voting for the person I best see fit for the role, a person who will stand up and ask the questions that need to be asked and a person who has a proven track record of accomplishment in everything he does,
Michael D is a real statesman and a great repersentive for Ireland. He seems to be the only one that understands what the job is about.. All the others shitting on about things they wouldn’t have anything to do with anyway.
You know what would demonstrate who is actually in the lead in this race??a journal poll ! I mean you have a poll for which type of tomato sauce people like. does the journal think this is not important enough to run one?
@Andy mc Laughlin: any poll carried out independently would be more accurate than those polls being offered at the minute. But I suppose that’s making the assumption that the journal is independent and impartial.
Oh my word. I genuinely did think Peter Casey was very Donald Trumpish……. now he’s going to appoint members of his family to important positions (his wife to the Council of State) if elected…..he has a similar Trumpishness on the issue of arms / neutrality and let’s not even go to ethnic minorities…I’m starting to think that he’s only involved for his entertainment value! Surely he can’t be serious.
@The Bull McCabe: he’s oddly quiet about how much he’d like to spend on arms tho Bull…. and presidency is all about pc and diplomacy… unless you’re Mr. Trump of course! Personally I would not want anyone representing the highest office in the land to be as bullish and aggressive as he is… be the holies we’d be at war with every second nation if Peter went off on a rant….. we’d need the other five to dig him out! Personally cannot wait for Friday to be over…. I’m losing the will
@The Bull McCabe: I don’t believe he’ll have the opportunity to spend money on anything Bull… well only out of his own pocket in any case……it’s his ideas and attitudes on the arms that are a worry. Anyway each to his own Bull and we’ll all hopefully make an effort to use our vote on Friday…… that’ll be the deciding factor
@CrabaRev:
Very true.
I hadn’t seen much of her before, but she comes across really very badly. Creepy with the touching, condescending with some of her answers, dishonest and disingenuous with her replies on the HPV vaccine and the average wage question.
Ironic that Peter Casey has said they cyber bullying is a scurge on the nation and hw will be working on tackling that issue if he is elected considering the absolute hatred and bullying of Travellers that’s going on all over social media. Also Ironic how he doesn’t pay a cent of Tax in the country considering he is a multi millionaire running for head office in the country.
@Dwayne Jordan: yes was very bad quality debate ,mainly because nearly all the same questions we have heard all week been trashed out again with the same answers.Really taught RTÉ would have done better than that, in fact Claire Byrnes one was much better in my opinion.
@Mazza86: the only issue I have is that its a sweeping statement, if he said “most” then there’d be no critical leg to stand on, as factually most travellers do fall under his description, and I’d be very unhappy to be an honest traveller being swept in with the rest.
Well, what a dull discussion with no new ideas and all for a totally pointless position/role, and as 3 of them are used to hearing ” For that reason…… I’m out”
What a terribly moderated and structured’debate’. If anyone was watching this in a hope that it would sway them, I think they’ll be let down. Absolutely no consistency and everyone allowed just shout over each other, playing one man upship
Debating what? How much money the winner will take needlessly from the taxpayer? all theyre doing is throwing shite at each other.. What a pile of b****cks
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