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Does a ministers statements about his new law affect affect it's legal interpretation

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  • 01-03-2014 1:43am
    #1
    4Sticks
    Registered Users Posts: 1,155 ✭✭✭


    I am thinking of Phil Hogan and his new Building Control Regulations which take effect today.

    Please bear with me while I set up the context of my question. The new controls are applicable to domestic and non domestic works but my question will relate to domestic only

    From today 1st March in Ireland the building control process is being completely overhauled by this SI 9 2014 .

    New houses , extensions greater than 40m2 to houses and any building works that require a Fire Safety Certificate ( almost all works do ) will have to go through a dramatically overhauled commencement notice procedure and crucially - before a building can legally be used - completion procedure. Both procedures ( commencement / completion ) to be validated by Local Authorities.

    A central pillar of the new controls is the requirement that a client must appoint a competent builder and which builder must sign
    • at commencement a certificate of undertaking to comply with building regulations and
    • at completion a certificate of compliance

    The texts of these certificates is provided in the SI and key to my question is these particular words and the words I have highlighted being the cause of some vexation for aspiring self builders and construction professionals alike.
    Reliant on the foregoing, I certify that the works are in compliance with the requirements of
    the Second Schedule to the Building Regulations insofar as they apply to the building or
    works concerned.
    Signature: ——————————————————————— Date: ———————— (to be signed by a Principal or Director of a Building Company only)
    Name: —————————————————————————————————————
    Address: ————————————————————————————————————
    Tel: ———————— Fax: ———————— Email: ————————————————
    Construction Industry Register Ireland registration number (where applicable): —————

    Self builders meaning in the context of my question , a person who is not a builder but a person who wishes to "act as" builder by hiring his own carpenters , bricklayers , electricians etc. and without hiring an actual building contractor.

    One may have seen press headlines decrying "the end of self building in Ireland".

    Spokespersons from the RIAI / IEI / SCSI / SCSI and IAOSB have all interpreted the text I have highlighted above "(to be signed by a Principal or Director of a Building Company only)" as meaning - "the end of self building in Ireland".

    The minister has made several public statements both in the Dail and in media interviews to state that self building can continue for example on RTE Radio One this morning he said.
    "The people who engage in direct labour or self-build will be able to continue to do so because there is no change in the act; in the statutory obligations under the Building Control Act 1990,"

    Thank you for reading this far - at last to my question - my thread title

    Does a ministers statements about his new law affect affect it's legal interpretation. ?

    Or

    Would a judge faced with a dispute about the interpretation of the SI look soley at what the text of the SI alone states or - would he also take into account the ministers statements about what it says ?


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    #2
    coylemj
    Registered Users Posts: 25,361 ✭✭✭✭coylemj


    4Sticks wrote: »
    Does a ministers statements about his new law affect affect it's legal interpretation. ?

    Absolutely not.
    4Sticks wrote: »
    Would a judge faced with a dispute about the interpretation of the SI look soley at what the text of the SI alone states or - would he also take into account the ministers statements about what it says ?

    The judge would look at the text of the SI and the underlying Act of the Oireachtas and totally ignore anything a minister might have said.

    Although ministers are involved in formulating bills and (as TDs) in passing them into legislation, once a bill becomes law it is the function of the courts to interpret it and nothing that a minster says counts for anything.


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    #3
    4Sticks
    Registered Users Posts: 1,155 ✭✭✭4Sticks


    Thank you coylemj - if I might ask a follow up question , again which I go a little around the house ( nu pun intended ) before asking

    The SI states
    “Form of Commencement Notice
    9. (1) A commencement notice shall be—
    (a) filed electronically on the Building Control Management System
    or set out in the form for that purpose included in the Second
    Schedule

    If I am a Self builder who is listening to the minister who has stated words to the effect that I may "declare myself" a builder under his new legislation.
    I have to hand the builders commencement / completion certificates - which one can see at pages 20 and 29 of the SI ... and I am concerned that I do not wish to mis represent myself in a way that I may later regret in the event I am being sued.

    Can I manually complete the certificate and strike through the words "(to be signed by a Principal or Director of a Building Company only)" ?

    Or

    Would doing so "void" the certificate ?


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    #4
    martinn123
    Registered Users Posts: 2,300 ✭✭✭martinn123


    It would appear, to my non-trained Legal eye, that there is a conflict between the Ministers words as quoted above, ( taken from an interview on RTE Friday 28th 8.20am),
    and the actual wording of the Form, to be completed, with the Wording as quoted above.

    Would a solution, to bring the Documentation in line with the Ministers intentions, be a variation in this Form for Self - Builders.

    Say version 2, omiting the words....(to be signed by a Principal or Director of a Building Company only), and replaced by say

    ....to be signed by the Landowner, in the case of Self-Build.

    now that the Legislation has come into force as at midnight, how difficult would such an addition to the documentation be.

    I assume a Ministerial Order.


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    #5
    the world wonders
    Registered Users Posts: 489 ✭✭the world wonders


    There was the case of Pepper v. Hart in the UK some years back which held that judges could take parliamentary speeches into account when attempting to interpret ambiguities in legislation. But it's far from certain that an Irish court would uphold this precedent. Also it only applies if the legislation is ambiguous, if the law is crystal clear (as it seems to be in this case) then the minister cannot rewrite it unilaterally.


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    #6
    234
    Registered Users Posts: 1,529 ✭✭✭234


    martinn123 wrote: »
    It would appear, to my non-trained Legal eye, that there is a conflict between the Ministers words as quoted above, ( taken from an interview on RTE Friday 28th 8.20am),
    and the actual wording of the Form, to be completed, with the Wording as quoted above.

    Would a solution, to bring the Documentation in line with the Ministers intentions, be a variation in this Form for Self - Builders.

    Say version 2, omiting the words....(to be signed by a Principal or Director of a Building Company only), and replaced by say

    ....to be signed by the Landowner, in the case of Self-Build.

    now that the Legislation has come into force as at midnight, how difficult would such an addition to the documentation be.

    I assume a Ministerial Order.

    It would seem that self-builders will just have to incorporate as one-man companies.


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    #7
    kkelliher
    Moderators, Home & Garden Moderators Posts: 1,583 Mod ✭✭✭✭kkelliher


    Hard to see how you could have a situation where professional builders would have to comply with one law and non professional builders could comply with a lesser law? Minister is simply incompetent in his understanding on his own legislation but then whats new with this minister


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    #8
    4Sticks
    Registered Users Posts: 1,155 ✭✭✭4Sticks


    I would be inclined to think the minister understands perfectly well and is simply trying to diffuse the political reaction to his new law.
    My thanks again to those here with some legal training and experience to draw on in posting here.


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    #9
    kkelliher
    Moderators, Home & Garden Moderators Posts: 1,583 Mod ✭✭✭✭kkelliher


    4Sticks wrote: »
    I would be inclined to think the minister understands perfectly well and is simply trying to diffuse the political reaction to his new law.
    My thanks again to those here with some legal training and experience to draw on in posting here.

    Having listened to him for years i would not be so sure. He has always come across as sounding like a stage actor learning lines as he never has an answer to a question and very rarely goes on live debates


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    #10
    Happyman42
    Closed Accounts Posts: 18,066 ✭✭✭✭Happyman42


    4Sticks wrote: »
    I would be inclined to think the minister understands perfectly well and is simply trying to diffuse the political reaction to his new law.
    My thanks again to those here with some legal training and experience to draw on in posting here.

    The fiasco happens when local authorities (who seem to be of the same opinion as the minister in some cases) allow self builders to sign off as the builder. What happens in a court then if problems arise?


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    #11
    mandy gall
    Registered Users Posts: 115 ✭✭mandy gall


    We asked our building control officer if they would accept these certificates and he told my husband that all the local authority BC sections have been instructed by the DOE to accept self builders signing for themselves FOR NOW. This is why we went to the Media - what the hell does FOR NOW mean?? Is the Law not the Law? If they introduce a new speed limit in to Law of lets say 110 mph but the Gardai tell the Citizens that "Minister Shatter has instructed us to let ye go as fast as ye like FOR NOW" and six months later I get caught doing 250mph and I turn to the Gardai and say but ye said I could FOR NOW - they would just say now, now Mandy who told you that? come on off to court we go...
    I am no Lawyer, no Architect, no Politician I am a housewife and from a little bit of Googling I can categorically state that Minister Hogan as made a most fatal blunder and will cause so much mayhem in the Building Control Authority Offices come this Monday morning. He is going to be made take that cheeky smirk off his face. The SI are a total violation of the Rights of every Citizen of Ireland.
    I checkd out the CIRI website this morn to see if it had gone Live - not yet. I went to the faqs...
    Third question down: Why is this register being set up?
    Answer: The Government have asked the CIF to set up the register.
    This in my opinion should read: The CIF have asked the Government to set up the register.
    Megabucks for the CIF with all the poor tradesmen scrambling with their near 800 euros to become registered in the hope of a little work. I said on Joe Duffy: the only trades to get ANY work under these regs are the Building Contractors usual gang.
    The cowboys from the Celtic Tiger have ridden in to town again for their piece of the pie, the vulture developers are flying in behind them and they are taking down the self builders, the tradesmen, the Architectural Technicians, the Draughtsmen and the Sheriff (Hogan) is giving them full legal protection to do so.
    It aint over till the fat lady sings - and boy is she going to wail xxx


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    #12
    kkelliher
    Moderators, Home & Garden Moderators Posts: 1,583 Mod ✭✭✭✭kkelliher


    mandy gall wrote: »
    The SI are a total violation of the Rights of every Citizen of ireland

    Maybe I am missing something but how?


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    #13
    4Sticks
    Registered Users Posts: 1,155 ✭✭✭4Sticks


    Can I appeal now to all fellow posters to narrow the focus here as much as possible to a legal discussion.
    Please.
    We have all seen a thread on this matter in C+P hit the mud.


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    #14
    Happyman42
    Closed Accounts Posts: 18,066 ✭✭✭✭Happyman42


    4Sticks wrote: »
    Can I appeal now to all fellow posters to narrow the focus here as much as possible to a legal discussion.
    Please.
    We have all seen a thread on this matter in C+P hit the mud.

    It is a very narrow legal focus, what happens legally if people are told to proceed as per the 'advice' outlined by Mandy Gall? Where do the legal brains think the homeowner will stand in future?


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    #15
    cobhguy28
    Registered Users Posts: 301 ✭✭cobhguy28


    the world wonders wrote: »
    There was the case of Pepper v. Hart in the UK some years back which held that judges could take parliamentary speeches into account when attempting to interpret ambiguities in legislation. But it's far from certain that an Irish court would uphold this precedent. Also it only applies if the legislation is ambiguous, if the law is crystal clear (as it seems to be in this case) then the minister cannot rewrite it unilaterally.

    Its has already been held in Crilly v T & J Ferrigton that parliamentary speeches/debates can not be taking into account.


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    #16
    Carawaystick
    Registered Users Posts: 8,779 ✭✭✭Carawaystick


    Is a "Building company" defined?


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    #17
    Happyman42
    Closed Accounts Posts: 18,066 ✭✭✭✭Happyman42


    Carawaystick wrote: »
    Is a "Building company" defined?

    That seems to be the grey area. Some Local Authorities are intimating that a 'self builder' can appoint themselves as 'building company'


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    #18
    martinn123
    Registered Users Posts: 2,300 ✭✭✭martinn123


    Happyman42 wrote: »
    That seems to be the grey area. Some Local Authorities are intimating that a 'self builder' can appoint themselves as 'building company'

    Following on from correspondence, to the department, this letter has issued by way of clarification??
    Response from Mr Martin Vaughan, DECLG regarding S.I.9 - 13th March 2014

    Dear Mr McCloud,

    I wish to reply to your email of 26 February 2014 and 10 March 2014.

    Firstly, I am happy to forward a PDF copy of Information Note issued on 26 February 2014 and now on headed paper as requested.

    In relation to your understanding of the reply to Parliamentary Question No. 544 of 28 January 2014, I can confirm that your understanding accords with the Department’s position that a Self-Builder can nominate them-self as the Builder and sign the undertaking and the Certificate of Compliance on Completion (Part A). In nominating themselves as Builder and signing the Undertaking by the Builder, they are declaring that they are competent and undertaking to follow the certified design and to employ/engage competent persons, etc. and anyone signing these forms must of course be faithful to the undertakings so given.
    In relation to the signature by a Self-Builder of the Undertaking by the Builder or Certificate of Compliance on Completion (Part A), the Department does not foresee a difficulty in a Self-Builder signing this form where they are clearly not a company.

    To put things in their proper context, SI No. 9 of 2014 in introducing certificates of compliance must support and preserve the statutory responsibilities (on owners, designers and builders) that are already set out under the Building Control Act 1990 (the Act of 1990). The chain of responsibility begins with the owner. They must now sign the Commencement Notice and the notices of assignment of the Builder and of the Assigned Certifier (for present purposes we are only concerned with the Builder).

    The Notice of Assignment of Builder requires the owner to declare they are satisfied that the assigned person is competent to undertake the works. This is the essential point - that the owner acts with responsibility. In practice this assigned person will be a sole trader, a company or a Self-Builder and their status is irrelevant once competence is assured. The Building Control Authority has no role in checking or verifying the builder's competence – it is the owner’s responsibility. If the building control authority does have concerns they have separate powers of inspection and enforcement under the Act of 1990 to deal with the situation as appropriate. The only limitation put on the assignment is that the owner satisfies themselves that the person assigned is competent to undertake the works. This Notice of Assignment is signed by the building owner and no one other than the building owner can make this assignment. You will note from the form that if the assigned person changes the building owner is legally obliged to inform the local authority and to assign and notify a new builder. The importance of this is that assigned builder (and no one other than the assigned Builder) can sign Part A of the relevant Certificate of Compliance on Completion.

    The Assigned Builder is then required to sign their form of undertaking. The form must be signed by the person notified to the Building Control Authority as the Builder, thus preserving the chain of responsibility. In effect the owner controls who signs this form by making the notice of assignment. Where the person assigned is a firm, the signature must be signed by a Principal or Director i.e. it should not be signed by an employee. This qualification of the signatory is only necessary in the case of a company. Where a Self-Builder is acting on his or her own behalf, there are no agents or intermediaries involved, and the potential for confusion over legal responsibility does not therefore arise.

    In relation to the signature by a Self-Builder of the Certificate of Compliance on Completion, the Department’s view would be as outlined above in relation to the form of undertaking. Part A of the Certificate of Compliance on Completion must be signed by the person assigned and notified by the owner at commencement. Again it is only where the assigned Builder is a corporate entity that the signature must be signed by a Principal or Director i.e. not by an employee.

    From a building control perspective, if this certificate is signed by a person other that the person already assigned and notified, then a problem will arise in relation to validating and registering the certificate.

    On this aspect of the matter you also asked why the signature line could not refer to the “building owner” – in this regard it is important to understand that the undertaking by the Builder and the Certificate of Compliance on Completion deal with the responsibilities of the Builder (not the owner) and it is important therefore that persons signing these forms know and understand that they are dealing with their responsibilities as Builder for the purposes of these forms.

    In relation to the “Code of Practice for Inspecting and Certifying Buildings and Works” and the guidance in relation to use of competent persons, in your situation it is the Self-Builder who must be satisfy as to the competence of any person they engage for a particular task.

    In relation to the Minister’s public comments on the likely cost of engaging an assigned certifier I attach for information a statement on the impact of the regulations which may be helpful in outlining the Department’ position in this regard.

    I trust the above should finally clarify these matters for you.

    Yours sincerely

    Martin Vaughan
    Assistant Principal
    Architecture/Building Standards Section
    Department of the Environment, Community and Local Government


    Information Note on Building Control (Amendment) Regulations 2014 (SI No. 9 of 2014) and the Self-Build Sector

    Summary Statement on Regulatory Impact of the New Building Regulations (SI No. 9 of 2014)
    Letter from Iaosb to Mr Martin Vaughan, Department of Environment, Community and Local Government

    The Department seen to be stating they see no difficulties in the Self-Builder signing the Document in its current form.

    Does this give the Self-Builder any comfort in light of previously expressed reservations


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    #19
    mandy gall
    Registered Users Posts: 115 ✭✭mandy gall


    martinn123 wrote: »
    Following on from correspondence, to the department, this letter has issued by way of clarification??


    The Department seen to be stating they see no difficulties in the Self-Builder signing the Document in its current form.

    Does this give the Self-Builder any comfort in light of previously expressed reservations

    Are the beds in Mountjoy comfortable? :rolleyes:


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    #20
    martinn123
    Registered Users Posts: 2,300 ✭✭✭martinn123


    mandy gall wrote: »
    Are the beds in Mountjoy comfortable? :rolleyes:

    Sorry Mandy, but as this is the " legal Discussion Forum" I posted here to gain garner some Legal discussion, not a debate on the workings of Mountjoy.


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    #21
    mandy gall
    Registered Users Posts: 115 ✭✭mandy gall


    Sorry Martin - its just that i was informed by a Homebond official at a meeting that failure to comply with these regs may incur a €50,000 fine or 2 years imprisonment. Its far from a debate on the workings of Mountjoy im coming from !


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    #22
    Pat Mustard
    Registered Users Posts: 9,554 ✭✭✭Pat Mustard


    cobhguy28 wrote: »
    Its has already been held in Crilly v T & J Ferrigton that parliamentary speeches/debates can not be taking into account.

    In case anyone is interested.

    http://www.bailii.org/ie/cases/IESC/2001/60.html


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    #23
    Hairy mellon
    Registered Users Posts: 209 ✭✭Hairy mellon


    apologies other thread is closed

    i thought i saw a link somewhere to a site where commencement notices were recorded?

    i believe zero for march in tipperary north and meath to date.

    here is recent law society advice on bcar si9

    "As mentioned above, there is as yet no Construction Industry Register. Until such a register is in place, it seems that an owner could nominate him/herself as the builder provided that he/she is prepared to say that he/she is satisfied that he/she is competent to undertake the work. A self-build owner would then have to sign the form of undertaking by the builder confirming to the Building Control Authority that he/she was competent to undertake the work concerned and further undertaking to ensure that any persons employed or engaged by him to undertake any of the works involved would be competent to undertake such works. It is unlikely that most of the people who self-build would be able to correctly say that they were competent to undertake the work. The main contribution they would be providing would be a lot of hard labour rather than expertise in building technology and they generally would rely on friends, neighbours and contacts with expertise such as electricians, block layers, plasterers, roofers, etc. to provide the necessary expertise in these specialist areas.

    As mentioned above, it seems clear that the intention of the Department is that in due course it will only be possible for an owner to appoint a registered builder under these Regulations. It seems inevitable therefore that, from the date the register of builders is put on a statutory basis, it will no longer be possible to self-build as we know it.

    In the meantime, however, a self-build owner will have to be willing to complete forms as indicated above and to find an architect, engineer or surveyor that is willing to undertake the task of acting as an Assigned Certifier - in most cases for a person with no experience acting as a “builder”. Doing so will clearly increase the risk for the architect, engineer or surveyor and such professionals would be best advised not to undertake such a role in this sort of situation."


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