Has the Government been planting background statements and political justifications into primary legislation in the expectation of court challenges?
As “one of the recession’s worst casualties”, Ireland has had its share of disruption since 2007 and the financial turmoil since the collapse of the Celtic Tiger has led to a spate of crisis legislation.
There are two striking features of the more rushed pieces of legislation: (1) the inclusion of political commentary and (2) repeated use of the phrase “in the public interest” (which might remind some readers of Bull Island‘s Charlie McCreevy sketches).
The Minister has, in the public interest, the functions provided for under this Act because, after consulting the Governor and the Regulatory Authority, the Minister is of the opinion that—
(a) there is a serious threat to the stability of credit institutions in the State generally, or would be such a threat if those functions were not performed,
(b) the performance of those functions is necessary, in the public interest, for maintaining the stability of the financial system in the State, and
(c) the performance of those functions is necessary to remedy a serious disturbance in the economy of the State.
I haven’t been through the entire Statute Book, but had never before encountered primary legislation which explained its background in this way. One might expect this in the appropriately titled explanatory memorandum which accompanies each draft law (eg. this one). However, while an explanatory memorandum might be examined by a court when interpreting legislation, this is the exception rather than the norm.
The legislative editorialising seems to have developed somewhat by the time the National Asset Management Agency Act 2009 was drafted. Section 2 of that Act uses similar terminology which is, again, more political than legal in content but which is aimed at addressing the purpose of the legislation, rather than the context of it. The Financial Emergency Measures in the Public Interest Acts No. 1 & 2 2009 (scroll to bottom of linked pages) see the adoption of recitals, common in continental European civil law systems and familiar to Irish lawyers thanks to the regulations and directives of the European Union.
Lawyers in Ireland and the UK often wonder what the point to recitals is. The law should be confined, the thinking goes, to the four corners of primary legislative provisions and not muddied or complicated by mission statements, which may be advanced by a litigating party as, for example, giving rise to legitimate expectations. This article on the topic makes the point:
Recitals are supposed to be general statements. General statements are not something which ordinarily are recognized as giving rise to legitimate expectations. But also recitals in general (for instance, in contract law) are, well, recitals, not operative provisions and it is hard to fathom how they could give rise to positive obligations or defeat operative clauses.
Section 18(g) of the Interpretation Act 2005 is of relevance here. In general terms, it provides that marginal notes, headings and the like are to be ignored when interpreting legislation. However, the sections already referred to in recent crisis legislation are not headings and take the form of operative provisions (though they generally do not provide for any active measure).
It will be interesting to see on 1 November whether the divisional court which heard McKillen v. NAMA (a.k.a. Dellway Investment Ltd & ors v. NAMA, Ireland & the Attorney General) will consider section 2 of the NAMA Act when determining whether the circumstances outlined in that provision justify the operations of that agency [Update: it did make brief reference to section 2 at para. 4.2 & 9.55 of the judgment].
PS. The core pieces of emergency legislation are:
- Credit Institutions (Financial Support) Act 2008
- Anglo Irish Bank Corporation Act 2009
- Financial Emergency Measures in the Public Interest Act 2009
- Investment of the National Pensions Reserve Fund and Miscellaneous Provisions Act 2009
- National Asset Management Agency Act 2009
- Financial Emergency Measures in the Public Interest (No. 2) Act 2009
- Euro Area Loan Facility Act 2010
- European Financial Stability Facility Act 2010