Dr Eoin Daly
and Dr David Kenny

Controversy has erupted recently over the Government delaying the Climate Emergency Bill using an obscure constitutional device known as the “money message”.

The Government’s liberal use of this mechanism gives cause for concern and has the makings of a democratic and constitutional crisis. Generally, governments command the support of a majority of both Houses of the Oireachtas and control the legislative agenda with considerable ease. All this changes, however, under a minority government.

The Government remains in power because its arrangement with Fianna Fáil guarantees it a majority in votes relating to “confidence” and “supply”. However, when it comes to other legislative matters, all bets are off.

This is an unusual situation, but it is constitutionally valid: the Oireachtas is a separate constitutional entity to Government and is described in the Constitution as the “sole and exclusive” lawmaking body for the State. The primary role of the Government is to execute the laws passed by the Oireachtas.

However, despite its minority position in the Oireachtas, the Government has made frequent use of a little-known constitutional device to block legislative proposals originating from Opposition members.

According to article 17.2 of the Constitution, “no law shall be enacted for the appropriation of revenue or other public moneys unless the purpose of the appropriation shall have been recommended to Dáil Éireann by a message from the Government signed by the Taoiseach”.

This “money message” procedure effectively allows the Government to block financial Bills emanating from Opposition even when it is in a minority position in the Dáil.

The rationale for this is fairly clear: while the Government has no general constitutional control of the legislative process, it does have overall responsibility for managing the State’s finances. The Constitution tries to ensure coherence in fiscal matters by preventing the Oireachtas from pursuing a conflicting fiscal agenda or undermining the coherent management of State finances.

Unfortunately, there is great uncertainty as to what kinds of legislation is subject to article 17.2. It clearly includes measures whose primary purpose is to spend money. However, all sorts of Bills are not primarily about expenditure, but have indirect spending implications, if only because they cost at least some money to implement.

And it seems, based on recent practice, that the Ceann Comhairle and the Bills Office – which determine if a Bill requires a money message – have assumed that all such measures, even those involving minimal, indirect or incidental expenditure, fall under the “money message” provision.

Accordingly, it has used article 17.2 to block or delay a variety of Bills, many of which seem to involve only incidental or minor expenditure. The most high-profile examples are probably the Occupied Territories Bill, the Family Reunification Bill and, most recently, the Climate Emergency Bill.

But the Government has made such extensive use of the mechanism that it threatens, in a very real way, the constitutional lawmaking power of the national parliament. Dozens of Bills that have been approved in principle by the Dáil are blocked because the Government has refused to issue money messages.

We believe this is cause for great concern, and has the makings of a real democratic and constitutional crisis. Article 17.2 exists for a specific and narrow purpose: to prevent the Oireachtas from pursuing a conflicting fiscal agenda and undermining the coherent management of State finances.

The phraseology is also quite specific: it refers to laws “for the appropriation of revenue” (emphasis added), which suggests it refers to laws whose purpose is to spend, and not laws which may have the effect of incurring some expenditure.

This provision must be given this narrow reading for our constitutional system to function. Ultimately, all legislative measures, not just financial measures, cost money at some level, because all legislation must be implemented, and this costs something in public servants’ time, etc.

If the current position was taken to its logical conclusion, the Government would enjoy a general veto power over essentially all legislative proposals, despite its minority position.

There is an unfortunate ambiguity in article 17.2, but the interpretation of the Constitution and standing orders adopted by the Ceann Comhairle and the Government runs against the idea of democracy by majority vote and the spirit and purpose of the Constitution. A minority government should not have a general power to override legislation passed by a democratic parliament, and yet that is what has come to pass.

• Dr Eoin Daly is a lecturer in law at NUI Galway and Dr David Kenny is an assistant professor of law at Trinity College Dublin. This article first appeared in The Irish Times.