Committee Reports > List of Committees > Joint > 2004 > Committee on Finance and the Public Service > Report to the CPP on Procedures and Role of JC's

TITHE AN OIREACHTAIS

An Comhchoiste um Airgeadas agus an tSeirbhís Phoiblí

TUARASCÁIL CHUIG NA COISTÍ UM NÓS IMEACHTA AGUS PRIBHLÉIDÍ AR NÓSANNA IMEACHTA AGUS RÓL AN CHOMHCHOISTE

(IONSTRAIMÍ REACHTÚLA)

Bealtaine 2004

HOUSES OF THE OIREACHTAS

Joint Committee on Finance and the Public Service

REPORT TO THE COMMITTEES ON PROCEDURE AND PRIVILEGES ON THE PROCEDURES AND ROLE OF THE JOINT COMMITTEE

(STATUTORY INSTRUMENTS)

May 2004

Table of Contents

Introduction

Standing Orders 84(3) [Dáil] and 69(3) [Seanad] provide that “…… each Select Committee shall review its procedures, and its role generally, on an ongoing basis, and shall report at least once in each year to the Committee[s] on Procedure and Privileges on these matters.”.

These Standing Orders are expressed to be subject to Standing Orders 97 [Dáil] and 84 [Seanad], respectively, which provide, inter alia, for the Committees on Procedure and Privileges to “…… oversee the procedure in Standing, Select and Special Committees (as the case may be), whether by request from the relevant Committee or otherwise, and to examine, where appropriate, the role of Committees as they evolve,”.

This Report focuses on one aspect of the work of the Joint Committee - the effectiveness of its role in relation to the consideration of statutory instruments.

Scrutiny of Statutory Instruments

Background

Many Acts temper the authority of a Minister to make regulations by requiring that statutory instruments be laid before the Houses of the Oireachtas. The Acts often provide that the instruments can be annulled by the Houses within 21 sitting days after they have been laid. However, mechanisms for the selection of matters for consideration in the Houses do not generally accommodate the kind of flexibility that is needed to vet statutory instruments and identify and explore those which may require consideration and potential annulment. This role is therefore given to Joint Committees.

Paragraphs 2(a)(iv) [Dáil] and 1(a)(iv) [Seanad] of the Orders of Reference of the Joint Committee on Finance and the Public Service, require the Committee

to consider “such Statutory Instruments made by the Taoiseach and the Minister for Finance and laid before both Houses of the Oireachtas as it may select;”.

Systematic notification

At the beginning of 2004, it became apparent to the Joint Committee that it was not receiving in a systematic way copies of all statutory instruments which were being laid before the Dáil and Seanad. In some cases, statutory instruments were not received in good time, that is, they were received after or too close to the date by which they could be annulled. In February, the Committee put in place new arrangements with the Departments of the Taoiseach and Finance which involve –

• transmission of all statutory instruments to the Joint Committee at the same time as they were laid before the Houses, and
• provision of a covering note in each case giving the name and contact details of the departmental officials dealing directly with each statutory instrument.

The system of notification now appears to be working satisfactorily.

The Committee is aware, of course, that statutory instruments laid before the Houses are listed on the Order Papers. However, the way information is presented does not allow it to identify readily which instruments have been laid by the Departments of the Taoiseach and Finance.

The Committee notes that an identical power to consider statutory instruments has been conferred on all joint committees that have responsibility for oversight of a named Government department or departments. The attention of the Committees on Procedure and Privileges is therefore drawn to the experience of the Joint Committee on Finance and the Public Service so that it can consider, in the context of its examination of the evolving role of committees, whether new structures or arrangements are warranted which would assist committees generally in their scrutiny of statutory instruments.

Effective scrutiny

All statutory instruments received by the Committee since February, 2004, have been examined with a view to deciding whether or not detailed consideration by the Committee is warranted.

The aim of the Committee's consideration of a statutory instrument which it has selected for scrutiny is to form an opinion as to whether or not it should be annulled and, perhaps, to express opinions on how a revised statutory instrument might be improved. Such opinions are expressed in a report to both Houses. In order to be meaningful, a report by the Joint Committee on a statutory instrument must be capable of having an influence on the fate or content of that instrument. Therefore, the Committee must have available to it the option of contributing its views before the instrument becomes effective, i.e., before the time within which it may be annulled expires.

In practice, the Committee has not selected for consideration any statutory instrument which was not subject to a 21 day oversight period as the inability of the Houses to consider annulment removes the possibility of a practical outcome from the report of the Committee.

The Committee has received advice from the Parliamentary Legal Adviser (Appendix 3) which has been of considerable assistance to it and which, no doubt, will also be of assistance to the Committees on Procedure and Privileges. That advice makes it clear that there are often instances where a provision for oversight by the Oireachtas is not necessary because of the limited effect involved: the Committee accepts the rationale for this.

However, the Committee's experience has been that, on occasion, an oversight provision might be entirely appropriate but has not been included in the legislation under which the statutory instruments are made. In response to a query from the Committee on this issue, the Parliamentary Legal Adviser observed, inter alia, that “one does come across situations from time to time where oversight provisions are expected but nevertheless absent.”. The PLA speculates that in some instances this may be because the power conferred is relatively insignificant or that it may be an inadvertent omission.

The Committee is not in a position to determine the extent to which the absence of a 21 day oversight period is a problem, but it does consider that the consideration of statutory instruments by committees would be assisted by establishing the extent to which Oireachtas oversight of regulatory powers is systematically provided for when legislation is drafted.

Conclusions

The Joint Committee concludes –

1. that the absence of systematic and timely notification to it of statutory instruments until early this year inhibited its ability to fulfil its role of considering statutory instruments and that this situation may be a difficulty for the committees system in general;
2. that the examination of practice in relation to the provision for Oireachtas oversight in legislation may contribute to the effectiveness of consideration by committees of statutory instruments.

Recommendations

The Joint Committee recommends that the Committees on Procedure and Privileges of Dáil Éireann and Seanad Éireann, in the context of their oversight of procedure in Select Committees, –

1. consider how the experience of the Joint Committee on Finance and the Public Service in respect of the systematic notification of statutory instruments can be drawn on in any general review of procedure or the role of committees as they evolve; and
2. seek to establish the way in which oversight by the Houses of the Oireachtas and, by extension, their committees, is taken account of when Government bills are being drafted.

Mr. Seán Fleming, T.D.,
Chairman,

Joint Committee on Finance and the Public Service.

12th May, 2004.

Appendix 1

Orders of Reference

Appendix 2

Members of the Joint Committee

Appendix 3

Advice of the Parliamentary Legal Adviser