Backdating Legislation

BattleCorp

Back in 2015 Minister for Justice Frances Fitzgerald made a statement that she was going to put a cap on semi-auto centrefire rifles and revoke any licences lawfully issued after 18th September 2015. She never followed through with this legislation. Therefore people applied and were granted licences for these rifles since 18th September 2015 up until the present date.

Now, in the Criminal Justice (Miscellaneous Provisions) Bill 2022 that is currently before the Dail, there's the below Section that, if enacted, will take back all semi-auto centrefire licences lawfully issued since 18th September 2015.

Anybody any idea what legislation allows a law to be backdated over 7 years based on a statement by the Minister?

28064212

Under what legislation would such a law be prevented?

BattleCorp

https://www.boards.ie/discussion/comment/119874479#Comment_119874479

I don't know if any legislation exists that would either allow or prevent the Minister from backdating the ban over 7 years. That's why I'm on here asking the question.

And just to be clear, the Minister isn't banning these guns, she's allowing those who had these guns before 18th September 2015 to keep them but revoking lawfully issued licences after that date.

Here's my situation.

I have one of these guns. I applied for it after 18th September 2015 and was issued the licence. At the time I applied there was no legislation in place banning these guns. There was a statement by the Minister saying that she would revoke any licences issued after that date but she didn't implement the ban. So, at the time I applied, they were totally legal and I was granted a licence. Now, the Criminal Justice (Miscellaneous Provisions) Bill 2022, if passed in its current form, will revoke my licence.

I'm simply asking the question if anybody here knows what legislation allows the Minister to backdate the revocation of licences to 2015.

For example, I'm pretty sure a Minister couldn't revoke all driving licences that were issued since 18th September 2015.

28064212

https://www.boards.ie/discussion/comment/119874536#Comment_119874536

For example, I'm pretty sure a Minister couldn't revoke all driving licences that were issued since 18th September 2015.

I'm pretty sure they can. Legally anyway, whatever about the electoral impact.

What they can't do is enact legislation that would declare past acts to be criminal. From the Constitution:

15.5.1° The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission

I don't see how section 3DA would violate that, no act from the past will have been criminalised.

Peregrinus

https://www.boards.ie/discussion/2058271768/backdating-legislation

Bunreacht na hÉireann, Art 15.2.1: "The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas". That's certainly wide enough to authorise the Oireachtas to enact laws cancelling licences that were previously issued.

The only restriction on the retrospective effect of laws is, as 28064212 points out, that the Oireachtas cannot retrospectively criminalise an act — can't declare an act to be a crime which, at the time it was done, was not a crime. But this law doesn't violate that rule.

In fact, this law isn't retrospective at all; it only revokes licences with prospective effect. Licences will be revoked three months after the amendment takes effect, but they will be perfectly valid up to that point. They won't be retrospectively invalidated.

chunkylover4

https://www.boards.ie/discussion/comment/119875704#Comment_119875704

Also for taxation but agree with everything here.

Peregrinus

https://www.boards.ie/discussion/comment/119875857#Comment_119875857

Retrospective taxation is possible and is in fact common - e.g. the Minister announces on budget day that certain tax changes will be legislated with effect from budget day, and the Oireachtas later enacts legislation imposing those changes with effect from budget day.

In theory there's no constitutional barrier to an even greater degree of retrospectivity - e.g. the Oireachtas could pass an act in 2022 imposing an extra 1% tax on all income earned in 2021. It's political, not legal, constraints that stop it from doing so.

Marcusm

https://www.boards.ie/discussion/comment/119875867#Comment_119875867

I’d argue that it is rare that there is true retrospection in taxation. Budget measures intended to take effect from that day such as excise duty changes etc are generally formalised by means of a financial resolution that might. Other measures a taking early effect, such as anti-avoidance measure, generally only take effect from announcement albeit that enabling legislation is only passed in the Finance Act. That’s not a true measure of retrospection as adequate notice is given.

if, for example, an announcement was made which took effect before the announcement (not to mind enactment) then I would see that as retrospective legislation.

Peregrinus

https://www.boards.ie/discussion/comment/119879232#Comment_119879232

I think it is retrospection - the legislation, when passed, has effect from a date earlier than the date on which it was passed. The ministerial announcement effectively represents the limit of retrospection that is politically acceptable in normal circumstances, but it doesn't change the fact that it is retrospection.

chunkylover4

https://www.boards.ie/discussion/comment/119879966#Comment_119879966

It technically is. My point was that there is in effect (in my view but arguable) a defacto prohibition on retrospective taxation save where the state can justify a severe public importance (bankruptcy of the state) or where it is in effect an administrative step as described above for the budget. I do see an article about taxing PUP payments as retrospective but that may just be political noise, I haven't read into properly.

coylemj

https://www.boards.ie/discussion/comment/119875867#Comment_119875867

That's not exactly true. Budget measures that take effect from budget day are typically related to excise (fuel, booze and cigarettes) and they have to be passed that same evening by a vote of the Dáil, in order that the various measures take effect from midnight. It typically doesn't get much coverage in the press but it happens late in the evening of every budget day, after all of the opposition speeches.