Appendix 2 - The Administrative Nature of Statutory Instruments

It is generally held that statutory instruments, often referred to as "secondary legislation" or "delegated legislation", are "law" in the strict sense of that term. It would follow, therefore, that the making of such instruments constitutes law-making. For a number of reasons this may be an incomplete description and there are arguments to support the view that statutory instruments might not constitute "law" in the strict sense of that term.

Firstly, Article 15.2 of Bunreacht na hÉireann explicitly confers the "sole and exclusive power of making laws for the State" on the Oireachtas. That article also provides for the creation by law of "subordinate legislatures" but this has never been done. Secondly, the definition of "statutory instrument" as given in the Interpetation Act, 1937 says it "means an instrument made, issued, or granted under a power or authority conferred by statute". The Statutory Instrument Act, 1947 provides a virtually identical definition of "statutory instrument" viz. "..an order, regulation, rule, scheme or bye-law made in exercise of a power conferred by statute". What is clear from these definitions is that a statutory instrument involves the exercise of a power conferred by statute where "statute" is defined as an Act of Parliament (whether of the Oireachtas or of its predecessors).

The Constitiutional aspects of this issue are dealt with in some detail in the analysis of Article 15.2 contained in The Irish Constitution (3rd edition, 1994) by J.M. Kelly. Many of the judgements reported in Kelly relate to cases where it was argued that the delegation of powers of regulation to a Minister, by the Oireachtas, was unconstitutional because the delegation was one to make legislation and was thus contrary to Art. 15.2 of the Constitution. The essential points to emerge from these cases might be summarised as follows :

1. No provision has been made in law for the creation of "subordinate legislatures".
2. Where the Oireachtas gives to an administrative authority (including a Minister) the power to make regulations, these bodies are not "law makers" nor do they constitute "subordinate legislatures".
3. Other than by creating subordinate legislatures (which it has not done), the Oireachtas may not delegate the power to make, repeal or amend the law.
4. The power to make a regulation is no more than the power to put into effect the views of the Oireachtas. A regulation is no more than the mere putting into effect of the principles and policies of the Oireachtas as set out in the statute itself.
5. Where the Oireachtas appears to give wide discretion to a Minister, but fails to give clear guidance as to the exercise of this discretion (policies and principles), then the delegation by the Oireachtas is likely to be unconstitutional.
6. In exercising powers delegated by the Oireachtas under an Act, a Minister must act "with basic fairness, reasonableness and good faith".
7. The fact that the Dáil or Seanad may annul a regulation provides some measure of control by parts of the Oireachtas; it does not amount to control by the full Oireachtas.

The effect of all these points, taken together, is to question the notion that a statutory instrument is "law" in its own right. Indeed, this line of thinking is not particularly new. Basil Chubb's A Source Book of Irish Government deals with this very question and reproduces a short article entitled "The Constitution and Delegated Legislation" by Paul Jackson from Public Law (1962). Jackson's conclusions in 1962 were virtually identical with those set out above. Jackson begins his article with the following: (1st ed. 1964)

"To speak of delegated legislation, except as a convenient name for ministerial and other administrative regulations, orders, schemes, rules etc., is, in the light of the 1937 Constitution, a complete misnomer"

There is also the argument that the making of statutory instruments involves the exercise of both administrative and legislative functions. In this approach, the two functions are not necessarily mutually exclusive. An interesting observation on this issue - in the UK context - is provided in Wade's Administrative Law (5th ed.) which opens its discussion with the comment:

"There is no more characteristic administrative activity than legislation. Measured merely by volume, more legislation is produced by the executive government than by the legislature"(P. 733)

Wade goes on to observe that "there is only a hazy borderline between legislation and administration, and the assumption that they are two fundamentally different forms of power is misleading". Commenting on the position of the UK Parliamentary Commissioner (Ombudsman), Wade notes that the Commissioner was initially hesitant to criticise regulations but was induced to change his position by the Select Parliamentary Committee. For as long as the Commissioner did not deal with regulations the anomalous situation was that, as Wade puts it, "what was maladministration if done once apparently ceased to be so if done repeatedly under a rule". The Commissioner, according to Wade, eventually overcame "these conceptual controversies" and treats maladministration "as meaning simply bad administration, i.e. any action or inaction by government departments which he feels ought to be criticised, including anything which is unreasonable, unjust or oppressive".

There is one further consideration of relevance. This is the fact that, in general terms, there is no effective parliamentary monitoring of statutory instruments and the opportunities for Oireachtas members to amend or rescind them are inadequate. It is true that certain instruments require a positive motion of acceptance by the Dáil and Seanad; but these are a minority of statutory instruments. Most regulations are required to be laid before the Houses of the Oireachtas and they come into effect automatically unless they are rejected by motion of the Oireachtas. There is no longer any Oireachtas Committee dedicated to the examination of statutory instruments and it appears the mechanisms for raising such instruments in the Oireachtas - even if the volume of such statutory instruments allowed - are far from ideal. In any event, failure to lay a statutory instrument before the Houses of the Oireachtas might not, it appears, necessarily invalidate it - see Administrative Law in Ireland (2nd edition) by G. Hogan and D. Morgan at Page 25 (Note 68). This suggests that the validity of a statutory instrument might not be dependent on the approval of the Oireachtas as is the case with primary law.