Powers of the Oireachtas

Power to Make Laws

The sole and exclusive power of making laws is vested in the Oireachtas. The Oireachtas comprises the Dáil, the Seanad and the President. The President’s role is largely formal.

Article 15.2 of the Constitution permits the creation and recognition of subordinate legislatures and the conferring of powers on them. Similarly, Article 15.3 permits the establishment and recognition of functional or vocational councils. However, neither article has ever been availed of.

The exclusive power of creating legislation has been significantly affected by the requirements of European Union membership. Under Article 29.4.6 laws made by the European Union and its institutions may become part of domestic law. Nothing necessitated by membership of the European Union is to be invalidated by the Constitution.

Holding Government to Account

The Dáil elects the Taoiseach. The Taoiseach’s nominees for office as Ministers must be approved by the Dáil. Ministers are almost always members of the Dáil. Up to two members of the Seanad may be appointed as Ministers.

In theory, the Dáil and the Seanad are to hold the government to account. In practice, however, the governing parties must in effect have majority control of the Dáil and Seanad. This has significantly blunted the extent to which the Oireachtas may effectively hold the government and its Ministers to account.

See generally the sections in relation to parliamentary procedure and questions. Dáil committees have become more common in the last 40 years. Their remit has been expanded to include investigations into government policies, including matters of public concern. They may report on matters and their reports or the subject of debate are published.

Procedure of Houses

The Houses of the Oireachtas must sit in or near Dublin. They must hold a session at least once a year and their sittings must be in public. In the case of an emergency, either House may sit in private with the consent of two-thirds of the members present. Article 15.11 provides that all questions in each House are to be determined by a majority of the votes of persons present.

Each House elects a Chair and Deputy Chair. It must provide for its own powers and duties. These are provided through Dáil and Seanad standing order.

The House acts by a majority. Where there is a tie, the Chairman/Ceann Comhairle of the Dáil or Cathaoirleach of the Seanad has a casting vote. By convention, this is exercised with the government, but this is not always so. A person may not be a member of both Houses at the same time.

The legislation establishing many public bodies prohibits officers of various boards, committees and entities established by law from being members of the Oireachtas.

Houses of the Oireachtas Commission

The Houses of the Oireachtas Commission Acts provide for the mechanics in relation to the management of the Houses of the Oireachtas. This includes payment of salaries, expenditure, allowances, secretarial facilities, legal assistance and issues concerning involvement in litigation.

The Houses of the Oireachtas Commission consists of the Chairman of the Dáil and Seanad, the Clerk of the Dáil, four ordinary members of the Dáil, three ordinary members of the Seanad and a representative of the Minister for Finance/Public Expenditure.

Bypassing Seanad

Article 24 provides for circumstances in which the Taoiseach certifies in writing to the President and Chairs of the Dáil and Seanad that a Bill passed by the Dáil is extremely urgent and immediately necessary for the preservation of public peace and security by reason of the existence of a public emergency, whether domestic or international.

In this case, the Dáil may reduce the time during which the Seanad may consider the Bill. The President must agree to the reduction of time. If the President agrees to the reduction of time, the time for the duration of the Bill is reduced accordingly. The Bill may take effect, notwithstanding amendment or rejection by the Seanad. A Bill taking effect in this way may only become law for a period of 90 days unless the Dáil and Seanad decide otherwise.

In practice, emergency legislation has been passed in very short periods of time by the assent of the majority in both the Houses using guillotining of debate.

Where a Bill is initiated, passed in the Dáil but fails to pass in the Seanad, the Dáil may pass a resolution that the Bill shall be deemed to have passed in both Houses, if more than 90 days have passed from the date the Bill was first introduced in the Dáil.

If the Bill is introduced in the Seanad and amended in the Dáil, 90 days commences from when the amended Bill is returned to the Dáil. The process applies both to an outright rejection of the Bill and to amendments which the Dáil rejects.

Money Bills

Money Bills may only be initiated in the Dáil. They are sent to the Seanad only for recommendations which the Dáil may or may not accept. Recommendations must be submitted to the Dáil within 21 days of the Money Bill being sent to the Seanad.

A Money Bill is defined by Article 22.1 as a Bill which only contains provisions dealing with any or all of the following:

• the imposition, repeal, remission, alteration or regulation of taxation;
• the imposition for the payment of debt or other financial purposes of charges on public money or the variation or repeal of any such charges;
• supply;
• the appropriation, receipt, custody, issue or audit of accounts of public money;
• the raising or guarantee of any loans or repayment thereof; or
• matters subordinate and incidental to any of these matters.

The Act must be exclusively a Money Bill. Any question as to whether the Act is or is not a Money Bill is determined by the certificate of the Chair of the Dáil. This is deemed conclusive. The Seanad may, however, pass a resolution requesting the President to have the matter sent to the Committee of Privileges for determination. The President must consult the Council of State.

The President appoints the members of the Committee for this purpose. It must consist of equal members from the Dáil and Seanad with a Supreme Court judge as chair. In the event of a tie, the judge has the casting vote. The President may decide not to refer the matter to the Committee, in which event if nothing occurs within 21 days, the decision of the Dáil is deemed confirmed.

Becoming Law

A Bill is presented by the Taoiseach to the President for signature and promulgation. It must be signed within 5 to 7 days. It may be signed earlier if the government so requests, with the agreement of the Seanad. For example, an urgent Bill may be required to be signed on the day on which it is presented to the President.

A bill becomes law when signed, unless by its terms there is provision for commencement. This is commonly provided for. The Bill must be promulgated by publication in Iris Oifigiúil. Both the Irish and English text are enrolled in the office of the Registrar of the Supreme Court. The enrolled text is deemed to be conclusive evidence for provisions of the law concerned.

Privileges of Members

Article 15.13 of the Constitution provides that members of each House of the Oireachtas shall not, in respect of any utterance in either House, be amenable to any court or any authority other than in the House itself. In Ahern v Mahon in 2008, it was held that a member (in this case a former Taoiseach) could not be questioned in relation to matters he had said in the Dáil. The court could not make findings and conclusions in relation to them.

In Attorney General v. Hamilton it was held that where members repeat what has been said in the Dáil in circumstances where they expressly or impliedly abandon their privilege, the privilege would cease to apply. Otherwise, it continues to apply.

Article 15.12 of the Constitution provides that all official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged.

Members of the Oireachtas are free from arrest when going to, returning from or while within the precincts of either House. This does not apply to treason, felony and breach of the peace.

In Howlin v. Morris, a member of the Dáil who had given confidential information regarding alleged corruption in An Garda Síochána sought to resist the discovery of the document concerned. The Supreme Court did not accept that the above Article created absolute privilege. Such privilege could be created by legislation or Dáil rules.

The Article ought to be regarded as empowering the Houses of Oireachtas to deal with internal matters of procedure and discipline and to punish its own members for breaches of rules. It should of course be open to each House to withdraw any privilege from persons as transgress regulations of the House.

The freedom of debate, the protection of official documents and the protection of the private papers of members are necessary to the efficiency and efficacy of a House of Parliament. Their main purpose is to dispense with the necessity for legislation to secure these freedoms and protections by allowing each House to make its own separate rules relating to them. Effectively, the Article allows each House to make its own laws in this connection.

Sanctions by Houses

Each House should have the power to deal with persons who endeavor to disrupt its proceedings or commit other offences against Parliament and its members. They should be dealt with by a Special Act of the Oireachtas on the same lines as the legislation passed in other countries. If it so desired, the Chairman of each House would be empowered to make a complaint to the Attorney General requesting that particular matters be investigated with a view to prosecution.

The courts have refused leave to review a decision of the Ceann Comhairle disallowing a question to a government Minister (O’Malley v Ceann Comhairle 1997).

In Callely v Seanad Éireann it was confirmed that the courts are entitled to supervise the process of disciplining members for alleged wrongdoing. The member is entitled to a fair hearing. Article 15.10 did not oust the jurisdiction of the court.

Historically, Parliaments have imposed sanctions of fine and imprisonment. However, this has not been undertaken in modern times. The Houses of the Oireachtas and Committees of Procedures and Privileges may sanction, reprimand and suspend members. They may not expel or imprison them.