Documents Laid before the Oireachtas

trellheim

Question : ( Irish legislation) If an Act states that SIs created under said Act must be laid before the Houses

and said SIs are passed by the Minister , but not laid, are they still legally valid ?

For the purposes of the discussion assume they have NOT been laid.

Also assume that this was some time ago, not new.

hullaballoo

What does "laid before" mean?

28064212

hullaballoo wrote: »

What does "laid before" mean?

Presumably this process: https://www.oireachtas.ie/en/publications/docs-laid/.

e.g. from the Local Government Act 2019:

(4) Every regulation made by the Minister under this Act (other than subsection (3) and section 41 ) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

It seems that a challenge could be made if the subsection is not adhered to

trellheim

Sorry, yes, in line with what the previous poster had said 'shall be laid before each House' . Many thanks for the response. Is there any source for your comment re a challenge ?

GM228

trellheim wrote: »

Question : ( Irish legislation) If an Act states that SIs created under said Act must be laid before the Houses

and said SIs are passed by the Minister , but not laid, are they still legally valid ?

For the purposes of the discussion assume they have NOT been laid.

Also assume that this was some time ago, not new.

hullaballoo wrote: »

What does "laid before" mean?

The answer is no, if required to be laid (which means officially presented in accordance with the relevant rules and standing orders of the House) then they have no force, the procedure is provided for under Part 13 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013.

trellheim

Right. Thanks for that. I think I've found a couple of missing ones that should have been laid.

trellheim

As a followup - if they do then lay the SI would it have any retrospective application - I presume not ?

GM228

trellheim wrote: »

Right. Thanks for that. I think I've found a couple of missing ones that should have been laid.

What's missing and under which enabling legislation?

Peregrinus

GM228 wrote: »

The answer is no, if required to be laid (which means officially presented in accordance with the relevant rules and standing orders of the House) then they have no force, the procedure is provided for under Part 13 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013.

The standard provision requiring an SI to be laid before each House (including the provision in the 2013 Act that you mention to) provides for the SI to be laid "as soon as may be after it is made", which implies that the laying before both Houses is not itself part of the making of the SI, but a separate obligation arising in consequence of the fact than an SI has been made. That would suggest that the SI is in fact validly made, and I don't see that it would be automatically invalidated by the failure to lay it before the Oireachtas - the more so when there is no specific time limit for laying it. If an SI is made when the Oireachtas is not in session, it could be days, weeks or more before it is possible to lay it. If tailure to lay is to result in invalidity when, exactly, is the SI invalidated?

The point about laying an SI before the Oireachtas is (usually) to give the Oireachtas a chance to annul it, and (always) to make the Minister accountable to the House for making it - they can question him about it. There's certainly no explicit legislative intention, and I think no implicit legislative intention, to make the laying of the SI before both Houses a condition of validity.

(Now you're going to cite a Supreme Court judgment saying that, yes, this is a condition precedent to validity, aren't you?)

Peregrinus

trellheim wrote: »

As a followup - if they do then lay the SI would it have any retrospective application - I presume not ?

It does indeed apply retrospectively. There's an explicity provision that says that when an SI is annulled by both Houses, this does not affect the validity of anything already done under the SI, which can only be necessary if, in fact, things arlready done are presumptively valid.

trellheim

I would be very interested in an answer each way on this as you two are 180 on it ! .

So why bother putting in the requirement to lay a document at all if the Department is not going to bother to do it ?

it would at the least seem a breach of parliamentary privilege, i.e. rights granted to the Oireachtas for oversight, are being denied by the executive.

Peregrinus

trellheim wrote: »

I would be very interested in an answer each way on this as you two are 180 on it ! .

I'm keen for an authoritative answer too.

trellheim wrote: »

So why bother putting in the requirement to lay a document at all if the Department is not going to bother to do it ?

The purpose, as already stated, is to faciliate the Oireachtas in holding the Minister to account. It nearly always is done; you say you've found a couple that haven't been laid and I'm not doubting you but, even assuming that is correct, the bulk of SIs clearly are laid, where there is a requirement to lay.

trellheim wrote: »

it would at the least seem a breach of parliamentary privilege, i.e. rights granted to the Oireachtas for oversight, are being denied by the executive.

Yes, and that's a matter for which the Oireachtas can call the executive to account. But it doesn't necessarily go to the validity of the SIs. After all, if the Oireachtas had wanted to provide, when granting the power to make secondary legislation, that the laying of SIs before both Houses was a condition precedent to validity, it would have been a simple matter to do so. Instead they frame it as something to be done within a short but undefined period after the instrument has been made. That doesn't look like a matter that goes to validity.

On edit: it may be worth pointing out that the provisions of the Statutory Instruments Act 1947 which require statutory instruments to be numbered, printed, noticed in Iris Oifigiúil, sent to the National Library, the Law Library, etc all apply once the SI is made, not once it is laid before the Oireachtas.

GM228

Peregrinus wrote: »

(Now you're going to cite a Supreme Court judgment saying that, yes, this is a condition precedent to validity, aren't you?)

What makes you think I'll quote some case law

Unfortunately not this time (in this jurisdiction anyway) as I don't believe that such an issue has been tested.

However, there is some persuasive UK case law which shows a SI is not valid there if not laid before Parliament when required, one of the leading cases on the issue being the R vs Sheer Metalcraft Ltd [1954] 1 QB 586 case:-

I do not think that it can be said to make a valid statutory instrument it is required that all these stages should be gone through, namely the making, the laying before Parliament, the printing and the certification of that part of which it might be unnecessary to have printed. In my judgement the making of an instrument is complete when it is first of all made by the Minister concerned and after it has been laid before Parliament. When that has been done it becomes a valid statutory instrument, totally made under the provisions of the Act.

More recently in the Secretary of State vs Rahman & Ors [2011] EWCA CIV 814 Court of Appreal and subsequent [2012] UKSC 32 Supreme Court case it was shown that SIs not laid before Parliament are unlawful.

In the UK they have near identical provisions in relation to laying before Parliament so they would apply a very persuasive argument in any case here.

Peregrinus wrote: »

The standard provision requiring an SI to be laid before each House (including the provision in the 2013 Act that you mention to) provides for the SI to be laid "as soon as may be after it is made", which implies that the laying before both Houses is not itself part of the making of the SI, but a separate obligation arising in consequence of the fact than an SI has been made.  That would suggest that the SI is in fact validly made, and I don't see that it would be automatically invalidated by the failure to lay it before the Oireachtas - the more so when there is no specific time limit for laying it.  If an SI is made when the Oireachtas is not in session, it could be days, weeks or more before it is possible to lay it.  If tailure to lay is to result in invalidity when, exactly, is the SI invalidated?

There is no question of an SI been validly made, but rather one of it having lawful force.

A requirement to lay the SI is a procedural requirement just like for example the requirement to publish in Iris Oifigiúil or send to various bodies.

Failure to publish in Iris Oifigiúil will see it become invalid so why not failure to be laid?

Such a failure to lay is a major procedural defect, perhaps even more so than failure to publish because it is skipping an important part of the overall law making process - the ability of a house to annul the SI.

Peregrinus wrote: »

The point about laying an SI before the Oireachtas is (usually) to give the Oireachtas a chance to annul it, and (always) to make the Minister accountable to the House for making it - they can question him about it. There's certainly no explicit legislative intention, and I think no implicit legislative intention, to make the laying of the SI before both Houses a condition of validity.

I'm not so sure I agree with the part in bold, S122 (1)(a) of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 specifically states:-

122.— (1) Where in accordance with a provision contained in any statute (whether passed before or after the commencement of this section)—

( a) an instrument in relation to which this section applies may not come into force or may not take effect within a period after the laying of the instrument before a House, being a period not expressed in sitting days,

There is clear legislative intent within each enabling Act that a SI must be laid before the house and a clear legislative intent via the 2013 Act that an SI can't come into force until the relevant period has passed.

Now you could argue that strictly speaking S122 (1)(a) only applies if the SI is actually laid, it applies to an "instrument in relation to which this section applies" meaning it applies to any SI required to be laid so I think any question of actually being laid is irrelevant.

Obviously we have no definitive case law here, but in light of wording in statute and persuasive UK case law IMO any case law would confirm laying is required to have a force of law.

Peregrinus

Thanks for this.

Going to pick a couple of nits here:

First, the UK cases may not be altogether relevant. S. 4(1) of the Statutory Instruments Act 1946 (UK) provides that, where the enabling Act requires an SI to be laid before Parliament, it must be so laid before it comes into operation. (There’s a procedure that can be followed in cases of urgency for bringing it into operation earlier, but that’s by way of exception.) I don’t think there’s any similar provision in Ireland.

Secondly, it’s wrong to say that non-publication in Iris Oifigiúil will result in invalidity. In fact Statututory Instruments Act 1947 s. 4(2) provides the opposite; validity is not affected by non-publication.

(The only consequence of non-publication is that it won’t be possible successfully to prosecute an offence created by the SI, unless the court can be satisfied that other steps were taken to bring the purport of the SI to the notice of the public, of the groups likely to be affected by it, or of the defendant.)

Thirdly, I don’t share your reading of s. 122(1)(a) of the 2013 Act. The section only applies where the enabling act provides that the instrument is not to come into force with a period after it has been laid before the House. But as we have already noted the standard “lay before both Houses” provision typically does not provide that; it provides that the instrument must be laid, but does not provide that it won’t come into force until it has been.

I’d also point out that instruments themselves typically provide for when they come into force, and commonly provide that they will come into force on a date before they are likely to have been laid before the Oireachtas. For example as noted above Local Government Act 2019 requires SIs made under that Act to be laid before Parliament. SI no 20 of 2019 was made under the Act on 30 January 2019, and is expressed to have effect from 31 January. The SI was not laid before Dail Eireann on either day. And I don’t think it would be difficult to multiply these examples. If the rule is as you suggest, there are a great many invalid statutory instruments out there.

My point is that, if laying before both houses were seen as a condition of validity, wouldn’t standard commencement clauses recognise the fact, and not purport to bring instruments into force before they were laid? And wouldn’t departmental practice generally respect it? There’d be systems in place to ensure that instruments were laid in a timely fashion, and to document that this had been done. None of this seems to happen, yet we can’t find a successful challenge to an instrument on the basis of failure to lay.

trellheim

Thanks both. In the case I am looking at , the Act has sections where SIs under certain paras must be laid, others not. In the specific, in the past SIs have been indeed laid under the specific provision, but not recently.

THe point is an important one for reasons I am happy to share over PM

Peregrinus

How, as a matter of interest, are you establishing whether an SI has been laid and, if so, when it was laid? Doesn't seem to me to be easily checked, but maybe I am missing some very accessible resource for this information.

ohnonotgmail

Peregrinus wrote: »

How, as a matter of interest, are you establishing whether an SI has been laid and, if so, when it was laid? Doesn't seem to me to be easily checked, but maybe I am missing some very accessible resource for this information.

i suppose you could search for the SI number on kildarestreet.com

GM228

Peregrinus wrote: »

Thanks for this.

Going to pick a couple of nits here:

First, the UK cases may not be altogether relevant. S. 4(1) of the Statutory Instruments Act 1946 (UK) provides that, where the enabling Act requires an SI to be laid before Parliament, it must be so laid before it comes into operation. (There’s a procedure that can be followed in cases of urgency for bringing it into operation earlier, but that’s by way of exception.) I don’t think there’s any similar provision in Ireland.

The point is they are required to be laid,, failure to do so resulting in an unlawful SI, the only difference between here and the UK is the timeframe specified (they lay before having force, we lay after being made), I still think UK case law carries a persuasive value.

Peregrinus wrote: »

Secondly, it’s wrong to say that non-publication in Iris Oifigiúil will result in invalidity. In fact Statututory Instruments Act 1947 s. 4(2) provides the opposite; validity is not affected by non-publication.

(The only consequence of non-publication is that it won’t be possible successfully to prosecute an offence created by the SI, unless the court can be satisfied that other steps were taken to bring the purport of the SI to the notice of the public, of the groups likely to be affected by it, or of the defendant.)

Brain fart moment, getting mixed up with the prosecutorial provisions.

Peregrinus wrote: »

Thirdly, I don’t share your reading of s. 122(1)(a) of the 2013 Act. The section only applies where the enabling act provides that the instrument is not to come into force with a period after it has been laid before the House. But as we have already noted the standard “lay before both Houses” provision typically does not provide that; it provides that the instrument must be laid, but does not provide that it won’t come into force until it has been.

I’d also point out that instruments themselves typically provide for when they come into force, and commonly provide that they will come into force on a date before they are likely to have been laid before the Oireachtas. For example as noted above Local Government Act 2019 requires SIs made under that Act to be laid before Parliament. SI no 20 of 2019 was made under the Act on 30 January 2019, and is expressed to have effect from 31 January. The SI was not laid before Dail Eireann on either day. And I don’t think it would be difficult to multiply these examples. If the rule is as you suggest, there are a great many invalid statutory instruments out there.

My point is that, if laying before both houses were seen as a condition of validity, wouldn’t standard commencement clauses recognise the fact, and not purport to bring instruments into force before they were laid? And wouldn’t departmental practice generally respect it? There’d be systems in place to ensure that instruments were laid in a timely fashion, and to document that this had been done. None of this seems to happen, yet we can’t find a successful challenge to an instrument on the basis of failure to lay.

Perhaps you are correct especially considering your points on clauses and practice etc, but, surely the fact of a potential ability to be annulled, disallowed or disapproved, or rendered such as not to have any force being denied is a major procedural deficiency and a minister acting ultra vires?

I mention ultra vires because the enabling Act does not afford the minister the ability to bypass the laying requirement and so the lawfulness of the SI, or perhaps more importantly the procedure to bring about the SI as opposed to the SI itself is now in question.

GM228

Peregrinus wrote: »

How, as a matter of interest, are you establishing whether an SI has been laid and, if so, when it was laid? Doesn't seem to me to be easily checked, but maybe I am missing some very accessible resource for this information.

All laid documents become a matter of public record and can be searched for here:-

http://opac.oireachtas.ie/liberty/libraryHome.do

trellheim

GM228 wrote: »

All laid documents become a matter of public record and can be searched for here:-

http://opac.oireachtas.ie/liberty/libraryHome.do

Yes indeed I was going to post that but you beat me to it.

trellheim

to revert : GM228 assisted me over PM and pointed out I had the applicable bit wrong - so thanks ! It appears all is OK so far with respect to this aspect.

Peregrinus

GM228 wrote: »

The point is they are required to be laid,, failure to do so resulting in an unlawful SI, the only difference between here and the UK is the timeframe specified (they lay before having force, we lay after being made), I still think UK case law carries a persuasive value.

No, I think there’s a signficant difference. When you have an express statutory provision that says that Instruments must be laid before they come into operation, that provides a foundation for a ruling that, if they haven’t been laid, they haven’t entered into force. It also provides a foundation for an argument as to parliamentary intention; in any enabling power enacted after 1946, it can be argued that parliament intended instruments to be laid before they entered into force, because the law already requires this. None of this applies in Ireland.

GM228 wrote: »

Perhaps you are correct especially considering your points on clauses and practice etc, but, surely the fact of a potential ability to be annulled, disallowed or disapproved, or rendered such as not to have any force being denied is a major procedural deficiency and a minister acting ultra vires?

I mention ultra vires because the enabling Act does not afford the minister the ability to bypass the laying requirement and so the lawfulness of the SI, or perhaps more importantly the procedure to bring about the SI as opposed to the SI itself is now in question.

If Parliament wants to make the minister’s power to legislate conditional on laying before the Oireachtas, it can easily do so. And it often makes the power conditional on other things; the minister can make regulations after consulting X, or with the consent of Y, or after completing Z procedure. Whereas tabling obligations are always created in a separate provision, and expressed as something to be done after the regulations have been made, which suggests they are a consequence of the exercise of the minister’s power, not a condition that must be satisfied before he has any power. So I don’t think a failure to comply with laying obligations generally goes to the minister’s legislative vires; only where the Oireachtas provides for it do to so.

I’d agree with you that there’s a deficiency. Perhaps what is required is (a) a practice of imposing a stated deadline for laying (rather than an “as soon as practicable” requirement) plus a general legislative provision that, if regulations aren’t laid by the expiry of that deadline, they lapse (but without prejudice to the validity of anything already done) unless the Act creating the particular legislative power provides otherwise. A good number of common law jurisdictions have a provision of this kind.

GM228

I'll bow to your superior reasoning Peregrinus, though I do still think there could be consequences in terms of lawfulness of a SI (or the procedure for bringing about the SI) for failing to lay where required.

Until we have some case law on the issue in this jurisdiction (and potentially that may never happen) a question mark will hang over some of the points raised in this thread, though to be fair I doubt there are instances where the appropriate law maker will fail to lay a SI when required to do so.

Great thread.