What impact does the dissolution of the Dáil have on legislation?
The 32nd Dáil has been dissolved and the General Election will take place on 8 February 2020. This has raised some questions in relation to the status of legislation during the dissolution:
- can new legislation be enacted during dissolution?
- what happens to Bills that had commenced the legislative process?
- when will the Dáil reconvene?
Secondary Legislation
The first point to be aware of is that while the Dáil has been dissolved the Government has not e.g. the Taoiseach remains in situ although he is no longer a TD. This means that Ministers can continue to enact Secondary Legislation in the form of Statutory Instruments and Commencement Orders during the dissolution of the Dáil.
In December 2019 the President signed a number of Acts that have yet to be commenced e.g. Consumer Insurance Contracts Act 2019, Gaming and Lotteries (Amendment) Act 2019, Migration of Participating Securities Act 2019 and others. The Minister for Justice and Equality signed the Commencement Order for the Landlord and Tenant (Ground Rents) (Amendment) Act 2019 on 16 January 2020 and the Dáil was dissolved on 14 January 2020. We can expect to see Commencement Orders for other Acts signed during the dissolution. Article 28.11.1 of the Constitution states that the incumbent Taoiseach and Ministers remain in office as a caretaker Government until a successor is appointed. A caretaker Government works in the period between the termination of one Government and the formation of another. The outgoing Government will remain in office as a caretaker Government from the day the Dáil is dissolved until the day a new Government is sworn in. This principle outlined in the constitution is designed to ensure that the country is never without an executive.
Primary Legislation and Bills
While the Dáil is in dissolution new legislation cannot be brought forward and all Bills that have not completed the legislative process are deemed to have lapsed. Bills that have lapsed may be reinstated when the new Government is formed. A resolution must be passed in the Dáil Chamber for each Bill to restore it to the Order Paper. The Standing Orders of Dáil Éireann are the rules which govern the work of the Dáil. Standing Order No. 165 deals with the restoration of lapsed Bills to the Order Paper (the Order Paper sets out the business before the Dáil each sitting day):
- 165. (1) Any Bill, which lapses by reason of the dissolution of the Dáil, before it has reached its final stage, may be proceeded with on the reassembly of the Dáil at the stage it had reached prior to the dissolution, upon a Resolution restoring it to the Order Paper.
- 165. (2) Unless the Resolution restoring the Bill to the Order Paper directs otherwise, the Bill shall be proceeded with at the commencement of the particular stage which it had reached prior to the dissolution of the Dáil.
This Standing Order applies to both Government and Private Members Bills (PMB). At the beginning of the 31st Dáil, on 1 June 2016, 12 Government Bills were restored to the Order Paper following the approval of a resolution in the Dáil and 40 PMBs were restored. Bills that are restored to the Order Paper commence at the stage they had reached before the dissolution.
What happens next? the Legislation programme and the new administration
The restoration of lapsed Bills to the Order Paper only deals with Bills that have already been published and started the legislative process, not the Bills that were listed on the Government's Legislation Programme for the Autumn Session 2019 that were not published. Once the new Government has been formed they will publish their legislation programme. We can expect to see many of the same Bills listed that were promised by the outgoing Government e.g. the Criminal Justice (Money Laundering & Terrorist Financing) (Amendment) Bill to transpose the Fifth EU Money Laundering Directive and the Central Bank (Amendment) Bill to introduce a Senior Executive Accountability Regime, to name just two pieces of legislation.
The Seanad
The Seanad is not dissolved with the dissolution of the Dáil. Members of the Seanad hold office until the day before the polling day for the panels for the new Seanad however the Seanad tend not to sit in plenary session during the dissolution of the Dáil. Article 18.8 of the Constitution requires that an election for Seanad Éireann must take place not later than 90 days after a dissolution of the Dáil. On 21 January 2020 the Minister for the Housing, Planning and Local Government made Orders appointing the dates and times for the forthcoming general election of Members to Seanad Éireann.
When will the Dáil sit again?
The 33rd Dáil is due to convene for the first time on 20 February 2020. Items on the order of business will include the election of the Ceann Comhairle and the election of the Taoiseach. However depending on the make-up of the 33rd Dáil, following the results of the general election, the election of the next Taoiseach may not be possible on 20 February 2020. If we cast our minds back to 2016 it took 3 months for the newly elected TDs to elect the Taoiseach and form the new Government:
- the Dáil was dissolved on 3 February 2016 and the general election took place on 26 February 2016
- the members of the 32nd Dáil met on 10 March 2016 to elect the Ceann Comhairle (Chairman) and Seán Ó Fearghaíl was elected.
- Enda Kenny formally resigned as Taoiseach on 10 March 2016 but remained in office as a caretaker until a new Government was formed
- an agreement was finally reached for a Fine Gael-led minority government on 29 April 2016 - 63 days after the election
- the Dáil formally re-elected Enda Kenny as Taoiseach on 6 May 2016.
