The IBRC Promissory Note Deal

hames

There has been a significant amount of speculation in the Sunday papers and on radio discussion programmes today in relation to the legality of the IBRC Promissory Note Deal.

There are specific concerns in relation to whether or not it constitutes monetary financing, and there are also questions relating to the legislation delaying any cases being taken against the Bank by individuals like the Quinns.

I'm not sure how significant these murmurs are, but given that the legislation to get rid of IBRC had been prepared and laying in wait for months, why was its legality not tested in the Courts, similar to the nationalisation of AIB by the Minister for Finance a few years ago, when journalists (and everyone bar the Minister's legal team, it seems) were excluded from the hearing?

I know this was extremely sensitive legislation, but given its importance, it should have been tested in court before the deal was agreed, surely, and an injunction applied barring its reporting?

Or would it be too easy to subsequently challenge the Court's ruling and so have been of inadequate comfort to the Minister for Finance?

Please note, this is a question relating to the legal assurances the Minister might have been capable of achieving before a Court, not a political question.

NoQuarter

Because that's not how it works. While the Bill was sitting in the Oireachtas for however long it was, it is subject to changes, most notably by the Seanad when it passes through there. So you cant send a Bill to the Supreme Court to check if itl is constitutional every 5 minutes.
After both houses of the Oireachtas agree on a final draft, the Bill is sent to the President for a signature.

If the President has any concerns over the Constitutionality of the Bill, he can invoke Article 26 of the Constitution and send the Bill up to the Supreme Court for them to check its legality.

The Minister doesnt have the power to do such a thing.

Strawberry Fields

Even still the legality will be tested by the european court of justice if it is challenged, our own courts opinion won't matter a damn. So even if the SC had deemed it constitutional the question involves EU treaty law.

hames

NoQuarter wrote: »

Because that's not how it works. While the Bill was sitting in the Oireachtas for however long it was, it is subject to changes, most notably by the Seanad when it passes through there. So you cant send a Bill to the Supreme Court to check if itl is constitutional every 5 minutes.

Not every 5 minutes, that would be absurd and nobody suggested it.

My understanding was that the Minister can apply to have this legally tested... hasn't he done so in the past? what exactly is the impediment to that in law?

Strawberry Fields wrote: »

Even still the legality will be tested by the european court of justice if it is challenged, our own courts opinion won't matter a damn. So even if the SC had deemed it constitutional the question involves EU treaty law.

Yes, that's true well lets leave aside that aspect for now and examine how the Government might have proofed the legislation against any constitutional challenge, if possible.

Could it not have gone to the Supreme Court and secured an effectively private hearing, as happened in a similar case with AIB?

Returning to the European Treaties and the legal guarantee there, could it not have done something similar with the ECJ?

Strawberry Fields

hames wrote: »

Returning to the European Treaties and the legal guarantee there, could it not have done something similar with the ECJ?

Nope. EU law is supreme, if the Supreme Court say its black and the ECJ say it's white, then it's white.
Think of it like a higher court with the final say. The supreme court wouldn't really determine EU law questions, it's not it's place. No one is saying the act is unconstitutional in Ireland that is not the question, it's whether it breaches EU law between the 27 member states.

hames

Strawberry Fields wrote: »

No one is saying the act is unconstitutional in Ireland that is not the question, it's whether it breaches EU law between the 27 member states.

A number of people have raised questions over its constitutionality, particularly questions relating to the aspect of the legislation that may permanently or temporarily interfere with the private property rights of individuals as set out in the Act, but also in relation to impeding the Quinns' legal challenge as mentioned.

To say that EU law is supreme is a little vague, certainly it is superior to all national legislation; anyway nobody doubts the precedence of the European Court.

Part of the question was whether the Irish Government or the ECB could not have, say, challenge-proofed the monetary financing aspect with the ECJ?

Strawberry Fields

hames wrote: »

Part of the question was whether the Irish Government or the ECB could not have, say, challenge-proofed the monetary financing aspect with the ECJ?

No. Not that I'm aware.

NoQuarter

hames wrote: »

Not every 5 minutes, that would be absurd and nobody suggested it.

My understanding was that the Minister can apply to have this legally tested... hasn't he done so in the past? what exactly is the impediment to that in law?

5 minutes was a figure of speech! I obviously didnt mean 5 minutes, I said it for effect.

A Minister can have it tested by bringing a Constitutional challenge against an Act through the Courts. Not at the Bill stage though.

Strawberry Fields

hames wrote: »

My understanding was that the Minister can apply to have this legally tested... hasn't he done so in the past? what exactly is the impediment to that in law?

Minister can't, Article 27 allows President to do this but it needed to be passed before the morning to stop the bond holders removing their money

hames wrote: »

A number of people have raised questions over its constitutionality, particularly questions relating to the aspect of the legislation that may permanently or temporarily interfere with the private property rights of individuals as set out in the Act, but also in relation to impeding the Quinns' legal challenge as mentioned.

Well a number of people with locus standi can challenge it to the S.C.

NoQuarter

It would go to the H.C first.

And its article 26!

Strawberry Fields

Yes it's also bed time in strawberry fields.:pac:

hames

NoQuarter wrote: »

A Minister can have it tested by bringing a Constitutional challenge against an Act through the Courts. Not at the Bill stage though.

Would he not be able to secure some sort of declaratory order at the Bill stage?

Strawberry Fields wrote: »

Minister can't, Article 27 allows President to do this but it needed to be passed before the morning to stop the bond holders removing their money

When the President sends the proposed legislation to the Supreme Court, it is not all that different to the kind of challenge which I am envisaging a Minister would undertake to try and ascertain with some degree of comfort whether the legislation was sound.

This may seem like a very tedious length to go to, but the consequences of the legality of the deal unraveling - if the benefits are so dramatic as we are promised - could be severely detrimental to the Irish economy.

NoQuarter

hames wrote: »

Would he not be able to secure some sort of declaratory order at the Bill stage?

When the President sends the proposed legislation to the Supreme Court, it is not all that different to the kind of challenge which I am envisaging a Minister would undertake to try and ascertain with some degree of comfort whether the legislation was sound.

This may seem like a very tedious length to go to, but the consequences of the legality of the deal unraveling - if the benefits are so dramatic as we are promised - could be severely detrimental to the Irish economy.

No because a Bill is not a law. A Bill is just a draft. If a Minister had that power, they could drain the SC's rescources by constantly sending Bills to the SC.

If the President needs an Article of the Constitution to do it, I dont know why you insist that a Minister should have the capability. They dont.

hames

NoQuarter wrote: »

No because a Bill is not a law.

That's a statement of fact of which we are all aware.

It's not a reason why there is a legal impediment to a Minister seeking such a declaratory order from the Courts in the preparation of legislation. That legal impediment may exist, I'm just wondering what it is, or to what degree do we know it exists?

When the President sends a piece of legislation to the Supreme Court, s/he is exercising a similar, but different competence of his or her office, which is an automatic entitlement to resort to the Court on non-money bills, which can then be struck down or upheld.

All I am talking about is a Minister seeking clarification.

However, I do appreciate that the court may decide it has a responsibility to prevent itself from becoming a babysitter.

JackieBurke

Was this a money bill?

NoQuarter

hames wrote: »

That's a statement of fact of which we are all aware.

It's not a reason why there is a legal impediment to a Minister seeking such a declaratory order from the Courts in the preparation of legislation. That legal impediment may exist, I'm just wondering what it is, or to what degree do we know it exists?

When the President sends a piece of legislation to the Supreme Court, s/he is exercising a similar, but different competence of his or her office, which is an automatic entitlement to resort to the Court on non-money bills, which can then be struck down or upheld.

All I am talking about is a Minister seeking clarification.

However, I do appreciate that the court may decide it has a responsibility to prevent itself from becoming a babysitter.

Well, I dont know what to tell you. I've tried.

JackieBurke wrote: »

Was this a money bill?

No. A money bill is a bill relating to taxation or Government spending such as the Finance Acts that come out annually.

hames

NoQuarter wrote: »

Well, I dont know what to tell you. I've tried.

I find that a little un-neccessarily condescending, frankly.

If there is some sort of visible legal impediment to the minister seeking a declaratory order on a matter, it should be very easy to name. It shouldn't take more than a few words.

Saying that "if the president needs a constitutional article, why shouldn't a minister" is to confuse what is being sought entirely.

blueythebear

hames wrote: »

I find that a little un-neccessarily condescending, frankly.

If there is some sort of visible legal impediment to the minister seeking a declaratory order on a matter, it should be very easy to name. It shouldn't take more than a few words.

Saying that "if the president needs a constitutional article, why shouldn't a minister" is to confuse what is being sought entirely.

Legality of a bill is generally considered by the persons drafting it. i believe the office of the attorney general advises the government on this issue usually.

To answer your query in relation to sending a bill for consideration to the SC, there is not necessarily any impediment to doing so that anyone can point to but the simple fact is that there is no provision to do what you suggest. I.e. theres no ban on doing so but the fact is that there s no facility to do so.

The only way to challenge is via article 26 although this carries risks. Other option is for a person with locus standii to challenge the act through the courts.

hames

blueythebear wrote: »

Legality of a bill is generally considered by the persons drafting it. i believe the office of the attorney general advises the government on this issue usually.

Yes, and that tradition might be enough to comfort the court that bills could not start popping up before it on a recurring basis.

The fact that there is no explicit facility to do so for a Minister for Finance as opposed to an ordinary citizen seems of dubious relevance... all he is asking for is a legal declaration. The Minister would not be requesting the Court to examine a bill that has been voted on by the Dáil and the Seanad as though it were an official right of his, comparable to that of the President.

But given that this legislation confers such special powers upon the Minister for Finance, and claims to temporarily or permanently suspend the private property rights of various individuals, it is not beyond the realm of possibility that a Court would agree to issue some form of legal clarity, given how receptive the Court has been to the Minister for Finance in his previous scurries across the Quays.

hames

hames wrote: »

Yes, and that tradition might be enough to comfort the court that bills could not start popping up before it on a recurring basis.

The fact that there is no explicit facility to do so for a Minister for Finance as opposed to an ordinary citizen seems of dubious relevance... all he is asking for is a legal declaration. The Minister would not be requesting the Court to examine a bill that has been voted on by the Dáil and the Seanad as though it were an official right of his, comparable to that of the President.

But given that this legislation confers such special powers upon the Minister for Finance, and claims to temporarily or permanently suspend the private property rights of various individuals, it is not beyond the realm of possibility that a Court would agree to issue some form of legal clarity, given how receptive the Court has been to the Minister for Finance in his previous scurries across the Quays.

The Constitution assumes that the Oireachtas will act constitutionally. In fact it requires the Oireachtas to act that way. This presumption is reflected by the double construction rule followed by the Courts whereby if 2 possible interpretations of a piece of legislation are available to the Courts and only one of them is constitutional the Courts will assume the Oireachtas meant that interpretation.

While the office of the Attorney General is responsible for checking the constitutionality of a Bill that function is performed as part of the AG's role in Government. The Courts cannot presume that the Oireachtas is acting constitutionally and simultaneously check their homework for them to make sure they are not out of line before the Bill becomes an Act.

Secondly, Art 26 references grant an Act a shield from future challenge. That's an extraordinary amount of protection for a piece of legislation. There's a reason Art 26 is used so sparingly. What protection would an Act have if it had been checked by the Supreme Court first? How could the High Court impugn it?

hames

Deleted User wrote: »

The Constitution assumes that the Oireachtas will act constitutionally. In fact it requires the Oireachtas to act that way.

That goes without saying.

The Courts cannot presume that the Oireachtas is acting constitutionally and simultaneously check their homework for them to make sure they are not out of line before the Bill becomes an Act.

That is quite a leap in logic.

I don't see what the double construction rule has got to do with issuing a legal declaration that a Minister for Finance has certain powers, which is what is being discussed.

In this case, the Oireachtas has not acted. The Minister for Finance is seeking something which was the topic of another thread, like a declaratory order. I'm open to correction here but as far as I can see the double construction rule has nothing to do with such an order (not least because it is pre 1937).

JackieBurke

I take it presidents are not inclined to invoke article 26 due to the shield it provides against further challenges?

Also in the case of IBRC could the president have referred the bill and thus fecking up the govts plans that night? He would not have been popular but I fail to see how he could have been disciplined if he refused to sign.

NoQuarter

hames wrote: »

I find that a little un-neccessarily condescending, frankly.

I'm sorry to hear that.

JackieBurke wrote: »

I take it presidents are not inclined to invoke article 26 due to the shield it provides against further challenges?

Also in the case of IBRC could the president have referred the bill and thus fecking up the govts plans that night? He would not have been popular but I fail to see how he could have been disciplined if he refused to sign.

Not at all, I would be surprised if the President considered that an Art. 26 reference confirming a statute's constitutionality is to be avoided. Supreme Court resources is why it is used sparingly would be my guess.

In IBRC the President could have referred it, by all means. Perhaps there are behind-the-scenes politics to it.