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Legislation Background/Notes

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  • 19-09-2019 10:34am
    #1
    Cantstandsya
    Registered Users Posts: 737 ✭✭✭


    Not sure if this question will make any sense but gonna ask it all the same...

    Is there any way to access the notes/discussions that go into drafting up various legislation? For example, if I want to dig deeper in the Health Act 2007 is it possible to access the notes/discussion that shaped it or do we only get to see the fully formed legislation?

    Is the process of creating various legislation available to the public?


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    #2
    Riskymove
    Registered Users Posts: 10,887 ✭✭✭✭Riskymove


    Cantstandsya wrote: »
    Not sure if this question will make any sense but gonna ask it all the same...

    Is there any way to access the notes/discussions that go into drafting up various legislation? For example, if I want to dig deeper in the Health Act 2007 is it possible to access the notes/discussion that shaped it or do we only get to see the fully formed legislation?

    Is the process of creating various legislation available to the public?

    all the discussions within the Dail and Seanad when debating the Bill would be online on the Oireachtas site


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    #3
    Victor
    Registered Users Posts: 78,325 ✭✭✭✭Victor


    https://www.oireachtas.ie/en/bills/bill/2006/67/

    Take a look at the 'Act and Bill text', 'Related documents', 'Amendments' and 'Debates' sections.

    Beyond this, you could ask the Department of Health, the Bills Office in the Houses of the Oireachtas, the Office of Parliamentary Legal Advisers and the Attorney General's Office, but these are likely to claim their unpublished documents are part of a deliberative process and are unlikely to assist you, but you can try.


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    #4
    Peregrinus
    Registered Users Posts: 26,234 ✭✭✭✭Peregrinus


    In general the drafting process constitutes legal advice (from the Parliamentary Counsel to [usually] the Government) and it is privileged. You won't be able to access it.

    Depending on the legislation, you may be able to access the pre-drafting work - the advice, consultation, etc that went into the formation of the policy which was later embodied in legislation. Indeed, in some cases this is at least already partly public - Government undertakes a policy review in some area, consults with interested parties (who may or may not publish their submissions), issues a report, invites public comment, etc etc before announcing that legislation will be introduced to give effect to the report. Only then does drafting of the legislation begin.

    Note that, so far as interpreting the legislation is concerned, none of this is directly relevant. The Minister, the civil servants, the stakeholders or members of the public making representations - none of these are legislators, and what they want or intend the law to mean is irrelevant. What matters is the intention of the legislator - the Oireachtas. To determine the legislative intention the courts will look first and foremost at the wording of the legislation itself, and secondarily at other parliamentary material - at what was said in debate, and in particular in the Minister's speech on the Second Reading of the Bill, which is supposed to lay out the policy behind the Bill and the intended effect of the Bill, and at the Explanatory Memorandum for the Bill and (exceptionally) at anything else that may have been tabled in the Oireachtas in support of the Bill.

    Which is not to say that the pre-drafting work isn't of great interest from a political or policy point of view. But it's not something on which you can easily construct a legal argument.


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    #5
    Claw Hammer
    Registered Users Posts: 6,177 ✭✭✭Claw Hammer


    It is extremely rare for the courts to go beyond the text of an act itself unless there is an ambiguity which can't be resolved by the normal methods of statutory interpretation. Even then it would be mostly i cases where the legislation was intended to implement an EU directive. The house of lords only started looking at debates relatively recently, in a decision delivered in 1992 called Pepper v Hart.


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    #6
    Mr. Incognito
    Registered Users Posts: 9,798 ✭✭✭Mr. Incognito


    the Act as passed is the Act. The drafting notes are not.

    There are two rules of legislative interpretation. Strict or interpretutive.

    I am not sure what the query is but I would guess answering it would be legal advice which I charge for in real life.


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    #7
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    Claw Hammer wrote: »
    It is extremely rare for the courts to go beyond the text of an act itself unless there is an ambiguity which can't be resolved by the normal methods of statutory interpretation. Even then it would be mostly i cases where the legislation was intended to implement an EU directive. The house of lords only started looking at debates relatively recently, in a decision delivered in 1992 called Pepper v Hart.

    Ireland went in the opposite direction of the HoL, having previously looked at debates on rare occasions, but by 2000 debates were no longer admissible.

    Prior to that they were very rarely used here as intrinsic aids to interpretation, the court could look only at the speech of a minister or proponent of the draft legislation as being meaningful for interpretation, but anyone who isn't a minister or a similar responsibiliry deputy could provide an "insubstantial basis" for purposes of interpretation.


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