Ministerial guidance

Victor

Hierarchy of legislation

Constitution
Act
SI / Ministerial Order / Regulations / etc.
Ministerial Direction
Ministerial Guidance

How important is ministerial guidance in implementing policy? Can a body disregard such guidance if they think the guidance is wrong or inappropriate?

Tom Young

It really depends on what the legislation is to be frank.

E.g., EU Directive implemented generally by S.I. so it's topped and tailed to be dropped into Irish law as drafted in Brussels. No room generally for major manoevre etc.

Constitution - Amendment by Constitutional Amendment by the people in a vote.

Act - Primary legislation. This has most relevance to the question on Direction and Guidance. As primary legislation is as the name suggests the policy guidance and direction/s are of paramount importance in the process of development of the law or indeed policy in a particular area. Primary legislation goes through all 5 stages of the Oireachtas process for debate and amendment and more information can be found on this process on www.oireachtas.ie ancilary legislation such as S.I.s or EU Directives with an Irish slant can be 'hung off' primary legislation and there are various examples of this, e.g., Data Protection, Communications Acts etc.

SI, as mentioned in example above. Or can also be used to affect a specific direction by a minister in relation to an undertaking or organ of the state.

Regulations are generally found within Acts or Directives and are binding on undertakings or member states in the context of the EU e.g.,The important thing is that they are of general application. It shall be binding in its entirety and directly applicable in all Member States. Once a regulation is made, it comes into effect on the date specified in the regulation, if no date is mentioned, then 20 days after its publication in the Official Journal.

How important is ministerial guidance in implementing policy?

Pretty critical. Ministers generally have advisors on areas of key policy e.g., Economics etc. Or indeed subject matter experts on the Civil Service payroll.

Can a body disregard such guidance if they think the guidance is wrong or inappropriate?

Indeed, but generally this is done in a fully transparent consultation process which in general terms can be subject to full Freedom of Information exposure.

Tom

Victor

In particular I'm thinking about something like the Dublin Transport Authority bill where in section 13(4) the Minister can give guidance. http://www.oireachtas.ie/documents/bills28/bills/2008/2108/b2108s.pdf

While sometimes guidance is spot on, another piece of guidance said that national routes aren't allowed 30km/h speed limits. This means College Green and Grafton Street can't have a 30km/h speed limit. The council is sticking to the guidance, when sense says they shouldn't.

http://www.transport.ie/upload/general/6589-0.doc#_Toc99960387

5.6.2 Specific site considerations
• The 30 km/h speed limit would normally be applied to a zone or area but may sometimes be applied in respect of a single road;
• The permanent 30 km/h speed limit must not be applied to a national road;
• The area should not include any road that has a distributor function – i.e. all of the roads in the area should have a traffic function that is limited to the area itself.

Tom Young

(4) The Minister, in consultation with the Minister for Finance, shall provide to the Authority written guidance on multi-annual funding arrangements and the Authority shall have regard to such guidance in preparing an integrated implementation plan.

I take from this that the exchequer expenditure is what is being referred to in relation to the guidance mentioned. If it was a business, I'd imagine its something akin to forecasting! Who knows!

Sometimes asking the draftsman responsible delivers answers.

Tom

Victor

Tom Young wrote: »

Sometimes asking the draftsman responsible delivers answers.

The Supreme court doesn't care for parliamentary draftsmen.

It may all be academic in 1h16 minutes - they're putting the bill to a guillotine tonight, erorrs or not.

Tom Young

LOL - Sure, I get that, but do we not have a separation of powers issue in that? Complicates matters somewhat!