Primary legislation is law that is passed by the Oireachtas (the Irish parliament). Under the Constitution of Ireland, the Oireachtas is the only institution of the Irish State that can make laws.
Legislation starts as a Bill. The bill must be passed by the Dáil and the Seanad (the two Houses of the Oireachtas – the Irish parliament) before the President can sign the bill into law. When it is signed by the President, the Bill becomes an Act and is added to the Statute Book.
Bills must pass through a number of stages before they are voted on by the members of the Oireachtas.
Secondary legislation includes Statutory Instruments and bye-laws. An Act of the Oireachtas may delegate the power to enact secondary legislation to another body – for example, a Minister or a local authority. The secondary legislation must be consistent with the delegated powers permitted by the Act.
Stages of legislation
A Bill may begin (be commenced) in either the Dáil or the Seanad but it must be passed by both Houses to become law. Usually, Bills are commenced in Dáil Eireann. Money Bills (for tax or spending by the Government) or Bills to amend the Constitution cannot be commenced in the Seanad.
Bills are either commenced by a Minister of State (Government Bills) or by a TD or Senator who is not part of the Government (Private Member’s Bills). Once it is drafted, a Bill must go through 5 stages before it becomes law.
Drafting of the Bill
Sometimes, the Government publishes a Green Paper before it drafts a Bill. A Green Paper is a discussion document setting out ideas and inviting comment and views from individuals and relevant organisations.
The ‘general scheme’ of the Bill is often published and sometimes undergoes pre-legislative scrutiny by an Oireachtas Committee. The Committee may invite representatives of groups who will be affected by the Bill to meet and discuss the Bill.
A Private Member’s Bill is only scrutinised by an Oireachtas Committee if it passes the second stage in the Dáil (see ‘Second stage’ below).
The Bill is initiated. How this works differs depending on who is introducing the Bill:
- A Government Minister or the Leader of the Seanad can introduce a Bill and it automatically passes to the second stage
- Groups of 7 TDs or 5 Senators can introduce a Bill and it automatically passes to the second stage if certain criteria are met
- Any one TD or any three Senators can seek leave to introduce a Bill and whether it proceeds will be voted on by the House.
The Bill is put before the House (either the Dáil or the Seanad, depending on where the Bill was commenced) for a general debate on the principles of the Bill. Members of the House may make suggestions for amendments and additions. The House decides if the Bill should pass this stage and move on the Committee Stage.
Third stage – Committee Stage
Next, each individual section of the Bill is debated. This is often carried out by an Oireachtas Committee in the Dáil. Members discuss proposed amendments with the relevant Minister. The Minister decides on whether to accept or reject an amendment. If an amendment is rejected by the Minister, a vote can then be called.
The Committee State can be lengthy because there is no limit on the number of times a member can speak on an amendment.
Fourth state – Report Stage
This is the last opportunity for amendments to the Bill. Members can only speak twice on each amendment, and their second speech is limited to two minutes. No new amendments can be added by members outside the Government – only amendments from Committee Stage are discussed.
The Government can add new amendments at the Report Stage, but only by returning the Bill to Committee Stage.
This usually follows directly from the Report Stage. The House (either the Dáil or Seanad) where the Bill was commenced, votes on the Bill.
If the Bill is passed, it then moves to the next House (if it commenced in the Dáil, it now moves to the Seanad) where it goes through all 5 stages again. Amendments made in the second House can be rejected by the first House after a debate.
The Seanad has only 21 days to consider money bills.
The President and legislation
Once the Bill has been passed by both Houses, the Taoiseach presents a copy of the Bill to the President for signature. Once the President has signed the Bill it becomes an Act. Some Acts require a commencement order or orders before they have full legal force.
If the President considers that the new Bill may conflict with the Constitution, they may, after consultation with the Council of State, refer the question of the Bill’s constitutionality to the Supreme Court. The Supreme Court must then decide whether the Bill is constitutional. If the Supreme Court finds that the Bill, or any part of the Bill, is unconstitutional, the President cannot sign it into law.
Some Acts of the Oireachtas allow for regulations to be made by a Minister, local authority, or some other body, to add details about how a particular provision will operate in practice. These regulations are secondary legislation. A Minister makes regulations by signing a Statutory Instrument (SI). Local authorities pass bye-laws to make regulations for their local authority areas.
The majority of laws that are introduced each year are Statutory Instruments, rather than Acts of the Oireachtas. In 2020, there were 32 Acts of the Oireachtas signed into law, and 760 Statutory Instruments.
An SI is signed by a Minister under the powers given to the Minister by the principal Act of the Oireacthas.
For example, Section 17 of the Immigration Act 2004 says that the Minister for Justice can make an order requiring that citizens of certain countries need a visa to enter Ireland. Using their power under this Section, the Minister signed SI 473 of 2014 (Immigration Act 2004 (Visas) Order 2014) setting out the countries whose citizens need a visa.
The Minister can sign an SI into law without needing to pass a Bill through the Houses of the Oireacthas. But the SI cannot exceed the powers that are granted by the governing Act of the Oireachtas. The courts may strike down a law because the Minister has acted ultra vires (beyond their legal authority).
It is common for the Government to use Statutory Instruments to transpose EU Directives into Irish law.
Sometimes, an Act (or particular sections of an Act) does not come into force immediately. Instead, it needs the Minister to sign a ‘commencement order’. This is done by way of Statutory Instrument.
Local authorities have powers under Acts of the Oireachtas to pass bye-laws for their local areas. These are often used to regulate:
- Parking zones and parking fines
- Litter control
- The control of horses and dogs
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More information about how laws are made is on the Oireachtas website.