The dead hand of delay

There is no guarantee that laws passed by the Oireacthas will always be brought fully into operation

Mon, Dec 9, 2013, 01:00

The Government’s first response to its defeat in the referendum to abolish the Seanad has been to legislate to extend the franchise, and to give all third-level graduates a vote in Seanad elections. By doing so, the Government is merely implementing what voters, a generation ago, had already decided. Thirty four years ago in another referendum a majority supported that change. But successive governments – 10 in all – subsequently failed to give legislative effect to the people’s decision. Surprisingly, this failure has generated little political controversy or much public concern.

Major reforms in bankruptcy law have recently come into operation, with the bankruptcy period just reduced from 12 to three years, and closer to international norms. The changes occur five years after the onset of the financial crisis, and 12 months after the Oireachtas passed the legislation. Last week Minister for Justice Alan Shatter signed a commencement order for the bankruptcy sections of the Personal Insolvency Act to take effect. The delay in making the ministerial order was, presumably, to allow time to set up new structures to handle a heavy volume of bankruptcy cases.

There is no guarantee, however, that laws passed by the Oireacthas will always be brought fully into operation. A commencement order may often be required before parts of some Bills can come into effect, is exercised at the discretion of the minister . The Charities Act (2009) is a case in point. The Act is designed to provide for better regulation of, and accountability by, charities. It is much needed given the controversy over extra payments to employees of some publicly funded charities.

The Act, however, has yet to come into full operation, as commencement orders for some sections of the legislation have not been made, and are subject to review. Likewise, some key provisions of the Mental Health Act 2001, those relating involuntary admissions, review of detention, and consent to treatment, were only more recently brought into operation.

After 1979, voters later found that voting for change in a referendum was no guarantee that governments would legislate to give effect to their decision. And, they have also seen that – where aspects of legislation require commencement orders before they take effect – ministers can exercise discretion in setting or deferring the commencement date.

This ministerial discretion cannot, it seems, be legally challenged. It means the Oireachtas can pass laws that may well – in whole or in part – remain dormant for years. And while the public may be aware of much of the legislation the Oireachtas has passed, they may be unaware that key parts of some legislation have not been brought into effect. Oireachtas members, as legislators, should do more to question the executive about why some laws passed by parliament have yet to become fully operational.

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