Ireland's Legislature And Its Ability To Deliver Swift Policy And Legislative Response

Introduction With the prospect of a no-deal, crash-out Brexit now seeming unlikely, the air of impending doom has eased, for now at least. As we lived through each news bulletin revealing the day's twists and turns of Brexit, it was easy to forget that we were in the midst of what the late Professor Ronan Fanning described as "Ireland's biggest policy test since World War II". Although, as he said, there was no threat of war, Professor Fanning saw Brexit as a great European crisis with global ramifications.

In Ireland, the threat of a no-deal Brexit forced the Government, businesses and wider society to assess the likely impact that a Brexit crashout scenario would have had. In one sense, the prospect of Brexit was a real-life rehearsal of the State's ability to adapt to and cope with a very significant crisis situation.

From a policy and legislative perspective, the Government's response to Brexit has been multi-faceted. Brexit preparations were underpinned by two Contingency Action Plans, which provided focus and impetus to many of the preparatory steps that had to be taken. Legislative measures are a core part of the State's response to Brexit.

Legislation as a Policy Tool

Legislation has always been a key policy tool of governments. It is often promised by politicians as a means of fixing every problem, to the point where some Ministers had in the past been accused of over-legislating. At every election, political parties invariably promise to introduce multiple pieces of legislation to address society's ills. Abraham Maslow captured this tendency well when he wrote,1 "I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail".

However, in fairness to the current Government, the approach to tackling Brexit has had many dimensions – with legislation forming only part of the response.

Last February the Government published the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2019 – a 91-section Bill that proposed a series of important changes to laws across a broad range of topics, including health, enterprise, electricity, education, taxation, financial services, the marine, transport, social welfare, employment, extradition and immigration. Enacted in a matter of weeks, the resulting Act made provision for arrangements that would apply in Ireland in the event of a no-deal Brexit, and also set out the measures that would apply in the event of an orderly Brexit. To provide additional flexibility, the Act placed a degree of reliance on the ability of Ministers to make Regulations and Orders to address the detail of some of the topics covered in the Act.

In addition to using legislation, the Government's Brexit preparations had a budgetary aspect. Last October's Budget comprised a package of more than €1.2bn to respond to Brexit. The Budget statement set out in stark terms the main financial allocations that would have to be made in the event of a hard Brexit. These included a €45m Transition Fund, a €42m Rescue and Restructuring Fund, an €8m Transformation Fund for Food and Non-Food Businesses, and on the list went. As is normally the case, certain aspects of the Budget were implemented later that evening by the passing of Financial Resolutions. On this occasion nine such Resolutions were debated and voted on. They included Resolutions providing for an increase in the tobacco products tax, changes to the rates of mineral oil tax, changes to the carbon charge and changes to stamp duty rates. Being a most rare legislative creature, these resolutions are deemed to have "statutory effect" under s2 of the Provisional Collection of Taxes Act 1927.

Types of Legislation

We might ask ourselves what is the role and purpose of legislation. The general consensus is that legislation is vital in contributing to and maintaining order in society. As explained by the English philosopher and jurist Jeremy Bentham:

"The principal business of laws, the only business which is evidently and incontestably necessary, is the preventing of individuals from pursuing their own happiness, by the destruction of a greater portion of the happiness of others. To impose restraints upon the individual for his own welfare, is the business of education; the duty of the old towards the young; of the keeper towards the madman; it is rarely the duty of the legislator towards the people."2

There are two main categories of legislation: primary and secondary.

Primary legislation refers to Acts of the Oireachtas. Each Act begins its life as a Bill. A Bill is the vehicle by which the policies of the Executive (or other members of the Houses) are expressed and then debated and passed by the Dáil and the Seanad. A Bill that has been passed by both Houses is then presented to the President for signature. One of the features that greatly distinguish primary legislation from secondary legislation is its status under the Constitution, and directly related to that is the level...