Democratically deficient
THE scale of the nation’s fiscal problems is well known and the financial deficit is discussed daily. Yet the scale of the growing national democratic deficit is not debated to the same extent or with the same sense of urgency. This is in spite of the fact that the weakness of our legislative process has largely contributed to the current fiscal situation.
Our democratic and legislative systems as they are presently designed are failing. We know they failed in the run-up to the financial crisis but, unlike the financial regulatory system, our democratic structures are not going through the same radical transformation. And if they do not go through significant reform they will continue to fail citizens.
Self-governance is one of the key features of any democracy and the power to scrutinise and make new law is central to this. Yet when one looks at the way in which laws are introduced, debated and implemented, the size of Ireland’s national democratic deficit comes into view. The sheer number of laws being introduced without any proper oversight or scrutiny by the Dáil and Seanad is staggering.
Brian Hunt’s recent Oireachtas study, The Role of the Houses of the Oireachtas in the Scrutiny of Legislation, highlights the growing percentage of laws that government ministers introduce without any degree of scrutiny or oversight. In particular, the report highlights the prevalence of statutory instruments, EU regulations and directives among all laws implemented in Ireland.
The European Communities Act 1972 facilitates implementation of EU directives in Ireland by way of a statutory instrument. Whereas statutory instruments had previously been used as a legislative measure to supplement an act and provide relatively minor implementing measures or technical details, under the powers given to minister in the act, EU regulations and directives have consistently amended and replaced legislation previously passed by both the Dáil and the Seanad. With the mere stroke of the minister’s pen, significant legislation has been implemented without any debate or consultation by the legislative branch.
The taoiseach of the time, Jack Lynch, admitted that under the 1972 act the increased powers conferred on ministers to make regulation through statutory instruments were “admittedly considerable”. How effective can our democracy be when ministers can regularly bypass our constitutional system of checks and balances and create their own laws independently?
Consider laws introduced into Ireland in 2009 alone. Whereas 1,291 EU regulations automatically applied to Ireland without any systematic or detailed parliamentary scrutiny, 164 EU directives were added directly into Irish law, and 594 statutory instruments were made, again without any meaningful parliamentary scrutiny.
The only legislative measures introduced in Ireland in 2009 which received any degree of scrutiny by members of the Dáil and Seanad were the 47 acts enacted by the Houses of the Oireachtas. This suggests that, taking 2009 as an example, 98% of all laws introduced that year were not subjected to any real parliamentary review or oversight.
Even in the limited circumstances where the Oireachtas has been handed an opportunity to conduct meaningful scrutiny of EU legislation, it has failed miserably, and embarrassingly so when compared to other EU states.
The Lisbon Treaty permits each national parliament eight weeks to make submissions on proposed EU legislation. In response to the 139 pieces of legislation which were released for comment and consideration by member state parliaments in the first two years after Lisbon, the EU received 428 submissions, of which Ireland made only one.
The problems caused by this system of governance are only growing. Of the over 28,000 statutory instruments signed into law by ministers since independence, 7,333 — or 25% of them — were enacted between 2001 and 2010, again without legislative engagement.
According to Labour party whip Emmet Stagg TD, “the scrutiny of statutory instruments simply does not take place at all and this suits the Government”.
“Officials in the departments are particularly fond of skeletal legislation as it allows them to set out the detail of legislation in statutory instruments which will not be examined by the Houses.”
This further strengthens the executive and undermines the role of the legislative branch. Former taoiseach Bertie Ahern readily admitted, however, that “the number of officials in government departments who look at EU legislation is very small”.
Therefore, in the absence of parliamentary oversight, it would appear that ministerial and department officials are not scrutinising the EU legislation either.
It is clear that the elected representatives themselves are worn down by the system — this can be see in their approach to the few statutory instruments in which they can engage in debate. Indeed, Government chief whip Paul Kehoe is on the record as having stated that “even in respect of those statutory instruments which are laid before the houses, I don’t believe that members even read what instruments have been laid.”
Discouraged and disinterested, elected representatives are increasingly sidelined and they regularly play second fiddle to ministerial and bureaucratic power at national and EU level. The ways in which Ireland both creates law and fails to scrutinise EU laws weakens the extent to which citizens and their elected legislators are included in the policy-making process.
Power is in the hands of too few within our democratic system, not the people and those they elected to represent them. It is time that the national democratic deficit was re-balanced and that the democratic system was returned to its rightful owners.
* Mark Daly is a Fianna Fáil senator
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