Comment: The passing of bills is as tortuous as it ever was, despite the era of ‘new politics’

It is easier for a private members’ bill to pass second stage now, only because Government knows it will wither at committee stage, writes Brendan Howlin.

Comment: The passing of bills is as tortuous as it ever was, despite the era of ‘new politics’

TDS and senators of all parties and none, every week, attempt to solve problems for people in our country, but the blocked legislative process holds up progress.

After the last election, a government was formed that was well short of a majority in Dáil Éireann.

It was a new departure for Irish politics. Previously, a government could pass almost any law without obstruction, all managed by the civil service, and with opposition TDs often reduced to spectators and commentators.

Only rarely would a private members’ bill or amendment to a government law be accepted, and usually with major revisions by departmental legal drafters, at the request of the relevant minister.

This was all to have changed, in the era of new politics. Empowered TDs would have an enhanced role as legislators.

Government would have to seek support for every piece of legislation it would try to pass, while it would be unable to block or oppose opposition bills that carried the support of the House.

The reality has been deeply disappointing, as a do-nothing Dáil has been sidelined by the bureaucracy of the legislative process.

As dozens of new bills began passing second stage, the Government quickly cottoned on that, instead of feebly opposing a bill, it was easier to acquiesce and wave it through, where it would wither at committee stage.

Blocked politics is now the order of the day, as over 100 proposed laws jam up the process, with barely any movement to committee, report, and final stages.

Currently, it is pot luck whether a bill will pass. Five private members’ bills have become law and, of those, the ban on fracking and the change in the Good Friday licensing laws were driven through with government support and time.

Labour’s Competition Amendment Act, which returned collective bargaining rights to self-employed workers, was able to pass because the last government had already committed, in the Seanad, to supporting it.

However, despite that, it still took too long to progress it through both Houses. Whatever initial progress there had been on new politics has now completely stalled.

At the heart of the logjam are two problems. The first is the reluctance of government departments to cede power, over the drafting and content of laws, to the Oireachtas. The second is the constitutional provision in Article 17.2 that any proposed cost to the exchequer, in a bill, must be approved, in advance, by government, before the bill can proceed.

My recent bill to tackle online harassment now requires prior approval, to meet the “additional administrative costs arising from garda case investigations, due to new offences”.

Such costs would be minimal and hard to quantify, but the bill cannot go any further, until the Government approves it.

Even where bills have unanimous support, the process can be tortuous.

For example, Alan Kelly’s bill to allow craft breweries and micro-distilleries to sell their own products on-site to visiting tourists passed second stage in March 2017. It finally got through committee stage nearly a year later, on February 15, 2018, but is still a long way from becoming law.

It also needed a money message from government, to cover the administrative costs of issuing licences, and then it was subject to refining amendments from the Department of Justice. And this is a bill that no-one had objected to, and which all wanted to pass.

There is no reason why proposed laws can’t be progressed further and more quickly. Many are principled proposals to address gaps in the law or the real problems that people face.

From reforming school admissions, to banning microplastics, to better protection for renters, the vast majority of proposed laws are common-sense proposals. Some bills may be poorly written, but most are constructive and properly drafted attempts to change the law.

Resolving the backlog now requires a change of mindset in both the Oireachtas and within government departments.

Each department is focussed on its own minister’s legislative agenda and is not equipped to work with Oireachtas members to pass private members’ legislation.

There should be a designated parliamentary liaison officer in each department, to work with the relevant Oireachtas committee on the bills before it. Opposition spokespersons and proposers of bills would have a clear point of contact to work through the detail.

Each bill that reaches committee stage should also have a designated clerk or “sherpa” allocated from the relevant committee, along with legal support from the Office of the Parliamentary Legal Adviser.

This would be one way to formalise the process for moving opposition bills along and overcoming the blockages.

Committees would decide the priority of all legislation before it.

The final block to the passage of bills is the need for a government money message. For most bills, the sums involved are small, but the constitutional block, in Article 17.2, is clear.

However, it should be possible to formalise a procedure whereby every department would allocate a small fund to meet any minor administrative expenses associated with new bills, alongside streamlined government approval, which would respect the majority view of the House that has progressed it.

Proposed laws with a cost above a certain threshold, such as the hiring of new staff, payment of new allowances, or creation of new agencies, would not be eligible for this process.

On political reform, the programme for a partnership government says “the new political landscape in Ireland presents an historic opportunity to radically reform Irish politics — to fundamentally change the relationship between government and the Oireachtas, and with it the relationship between the Irish people and their parliament”.

It is long past time to give that statement real meaning.

Brendan Howlin is leader of the Labour Party and TD for Wexford.

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