Court may be only solution to money message stand-off

The row that has blown up in the Dáil this week concerning the little-known procedure called money messages has being simmering for some time.

The issue surfaced more than two years ago in connection with Fianna Fáil’s ill-fated Judicial Appointments Bill. At that stage, there were three Private Members’ Bills blocked using money messages. Today up to 60 Bills could potentially be blocked and the Government stands accused of using them to veto Opposition legislation.

If the Government withholds a money message – which covers “incidental” costs to the exchequer that might arise from a Private Members’ Bill becoming law – then a Bill cannot proceed.

Technically, there are two constitutional rights at play: the Houses of the Oireachtas’ right to legislate and the Government’s right to control the public purse strings. The appropriate balance between the two is key and ensures laws can be enacted that the State can afford.

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The current row – which has now moved to the High Court – centres on the Government withholding money messages for non-financial reasons. The issue cuts to the heart of parliamentary democracy. If a government can withhold money messages for non-money reasons then it has a licence to veto Private Members’ Bills.

Since January this year, the Government has signed up to give a reasoned response when withholding a money message and implicitly the financial reasons for doing so. It was part of a package of measures agreed between the Government and the Dáil to ease the passage of Private Members’ Bills in the wake of the row over the Fianna Fáil judicial appointments Bill.

Reasoned responses

It has now become clear from these reasoned responses that the Government considers that financial reasons are not required when withholding a money message. Reasons that have been given for withholding them include the fact that a similar policy to the one contained in the Private Members’ Bill in question had been already rejected by the Dáil. Coupled with an overexpansive interpretation of actual charges on the public funds when they do refer to finances, these responses leave the Government wide open to the accusation of operating a veto.

Constitutionally, a government cannot be forced to give a money message. But it is obliged to exercise its prerogative to control the exchequer purse strings appropriately with regard to the Dáil’s right to legislate. Is there a way of ensuring a better balance between the two constitutional rights?

Up until 1974, there were a suite of financial procedures in place to deal with this issue. They reflected procedures in other Westminster-style parliaments. These included the Dáil having a capacity to refer back or reduce government estimates for expenditure and a money message had to be “enabled” by the passing of a money resolution in the Dáil. The government had to advance its case as to why the specific charge on the public purse was justified, extraneous issues not being relevant.

Moreover, money resolutions also provided a “founding” resolution for the “charge on State funds” which, once given, would mean money messages would not be required for similar legislation again in the life of the Dáil. This would mean, if applied today, for example, that once the Government’s own Bill on judicial appointments received a money message, the blocking of the earlier Fianna Fáil Bill of 2016 would not be possible. These procedures were abolished in 1974 in the days of regular government majorities in the Dáil.

Better balance

However, they may strike a better balance between the rights of the Dáil and the executive in financial matters and could be more effective than the reasoned responses currently given under the measures than came into effect in January.

The requirement for some form of parliamentary action in plenary session to “enable” money messages or to require the Government to account for a refusal, would fit in with the “new politics” heralded by the make-up of the current Dáil.

Moreover, it is within the Dáil’s gift to strengthen its procedures including its assessment of when a money message is required and how traditional precedents, which reduce the need to seek a money message from the Government in the first place, are applied.

All Bills have some form of costs in implementation. Precedents generally allow for a proportionate approach and ensure that a money message would not be sought for minuscule costs of, say, a few postage stamps. It can be difficult to make an assessment of the likely charge on public funds and the UK practice of having £250,000 a year threshold on notional administrative costs before a money message is required has obvious merit.

Separate matter

But the recourse to the courts on the related but separate matter of the Ceann Comhairle ruling out of order the efforts by four TDs to propose amendments to the Dáil’s rules – which sought to prevent the Government from blocking Opposition Bills – do not augur well for a resolution of the issue internally by the Dáil Committee on Procedure ( which includes Government members ) even though  they have the capacity to do so.

However, if the Government remains resolute in misusing money messages as a veto then, regrettably, the only way to protect the right of the Dáil to legislate and strike the correct constitutional balance may be in the courts.

Kieran Coughlan is Adjunct Professor at the department of government in UCC and former clerk of Dáil Éireann

This article was ammended on November 8th, 2019