Regulations under European Act can be signed without being examined by Oireachtas
Senator seeking to recall house to discuss organ donation regime
Daly’s call last September for the organ donation regulation to be discussed was supported not only by his Fianna Fáil colleagues but also by the Sinn Féin senators and six of the Independents. Notwithstanding this and the provisions of section four of the 1972 Act, the Seanad authorities decided not to recall the Seanad to debate the regulation because they took the view that the section of the 1972 act may be unconstitutional. However, when pressed on the issue, the Seanad’s committee on procedure and privileges later in the year sought its own legal advice. It seems this advice was that there was no case law to suggest the provision in the 1972 Act was unconstitutional and the Seanad should amend its standing orders to expressly allow for the procedure Senator Daly had sought to invoke.
Indeed when originally enacted, the Act provided that ministerial regulations would only have effect if confirmed by the Dáil and Seanad. However, within a year, this was changed significantly to provide that ministerial regulations would have statutory effect unless the Dáil and Seanad pass a resolution annulling them. Since 1973 neither house has done that.
Having failed to get the Seanad recalled last August, it could be argued that Daly could have had the regulation debated at some point over the last 11 months when the Seanad was sitting. The reality in our system, however, is that, apart from limited private member time, it is the government majority which decided the business of both houses and they would simply have voted down the suggestion the regulation be debated. Daly put this to the test last week when he sought a debate on the organ donation regulation in the Seanad – only to have it voted down by the government parties.
The Seanad can still annul the regulation and compel the Minister to put in place a better one provided it does so before August 27th. Daly is making one further effort to have the Oireachtas exercise one of the few legislative muscles in has in relation to statutory instruments before this deadline. By August 6th, after after the 10 days’ recess have passed, it is likely he will have gathered at least 20 senators to again seek for the Seanad to be recalled. Assuming the Seanad authorities follow the better legal view, the house will sit near the end of August specifically to discuss this regulation.
As well as highlighting the issue of organ donation and the defects in the infrastructure, such a special session would also spotlight the otherwise ineffective Oireachtas oversight of European legislation.