Secondary Legislation amending Primary Legislation

GM228

More of a curiosity than anything else, but I'm wondering if there are many instances where Ministerial regulations have the ability to amend Acts of the Oireachtas?

Off hand I only know that Regulations made under S3 of the European Communities Act 1972 can do such for giving effect to EU law provisions:-

Power to make regulations.

3.— (1) A Minister of State may make regulations for enabling section 2 of this Act to have full effect.

(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).

Is there any other instances where this can occur?

Samuel T. Cogley

There's something about pigs and printing springing to mind.

I didn't think secondary legislation could amend primary legislation.

As usual I'm probably wrong but just popped in to say Hi.

loremolis

Regulation 8 of SI 445/2000 amends primary legislation.

Marcusm

GM228 wrote: »

More of a curiosity than anything else, but I'm wondering if there are many instances where Ministerial regulations have the ability to amend Acts of the Oireachtas?

Off hand I only know that Regulations made under S3 of the European Communities Act 1972 can do such for giving effect to EU law provisions:-



Is there any other instances where this can occur?

Aren’t these what the Westminster Parliament calls Henry VIII powers, much discussed in the context of Brexit. Still limited to the areas dealt with in the primary legislation, ie cannot amend outside the scope of the authorising legislation, ie regulations under Finance Act couldn’t affect the offence of murder.

Victor

loremolis wrote: »

Regulation 8 of SI 445/2000 amends primary legislation.

But that starts with "I, Mary O'Rourke, Minister for Public Enterprise, in exercise of the powers conferred on me by section 3 of the European Communities Act. 1972 (No. 27 of 1972)".

Peregrinus

Marcusm wrote: »

Aren’t these what the Westminster Parliament calls Henry VIII powers, much discussed in the context of Brexit. Still limited to the areas dealt with in the primary legislation, ie cannot amend outside the scope of the authorising legislation, ie regulations under Finance Act couldn’t affect the offence of murder.

What Marcusm said. Essentially, Henry VIII powers arise where (a) the parliament enacts a law, and (b) the parliament also confers on someone else - usally a Minister - the power to amend that law.

In the UK Parliament can do anything, and therefore Parliament can give Ministers sweeping powers to alter, amend, disapply, etc Acts of Parliament if it wishes to. However traditionally it has been very reluctant to do that - but that's a political constraint, not a legal constraint.

In Ireland, of course, we have a Constitution which vests the "sole and exclusive power of making laws for the State" in the Oireachtas, which would prevent a wholesale abdication of that power by the Oireachtas in favour of ministers. So there are constitutional limits on the extent to which the Oireachtas could confer Henry VIII-type powers on ministers. SFAIK these limits have not really been explored or articulated in the cases because, again, the Oireachtas very rarely attempts to do this.

The big instance where it is permitted is, as already pointed out, the European Communities Act, under which a Minister can make regulations which amend, repeal, etc an Act of the Oireachtas, but only to the extent that this is necessary in order to give effect to Ireland's obligations under EU law. Regulations made under the European Communities Act have to be laid before the Oireachtas and can be annulled by a resolution of both houses, so the Oireachtas hasn't completely abdicated the power to control what Ministers do here.

Victor

Peregrinus wrote: »

SFAIK these limits have not really been explored or articulated in the cases because, again, the Oireachtas very rarely attempts to do this.

John Grace Fried Chicken Ltd & Others -v- The Catering Joint Labour Committee & Others [2011] IEHC 27 and McGowan & Ors -v- Labour Court Ireland & Anor [2013] IESC 21 dealt with related matters.

GM228

Victor wrote: »

John Grace Fried Chicken Ltd & Others -v- The Catering Joint Labour Committee & Others [2011] IEHC 27 and McGowan & Ors -v- Labour Court Ireland & Anor [2013] IESC 21 dealt with related matters.

Those were the cases dealing with REAs which were declared unconstitutional, REAs were allowed for under an Act of the Oireachtas (namely Part III of the Industrial Relations Act 1946) as opposed to secondary legislation.

Claw Hammer

If the regulation is implementing a European Directive it can amend primary law. Otherwise the secondary legislation must stay within the confines laid down in the primary legislation.