Commissioned Research on the Constitutionality of the Contemporary Application of the “Money Message” Procedure Under Article 17.2 of the Constitution.

Executive Summary

This academic opinion assesses the constitutionality of the contemporary application of the “money message” procedure under Article 17.2 of the Constitution. It begins by outlining the procedure’s basis in the Constitution and the Standing Orders. It goes on to examine current use of the procedure, looking at the treatment of certain pieces of legislation from the current Dáil term to illuminate the practice, and noting that the procedure is used very expansively, much more so than the very similar Westminster procedure around “money resolutions”. It continues by assessing the compatibility of the procedure as currently practiced and instantiated in the standing orders with the Constitution, and concludes that there are several potential constitutional problems that arise.

First, the broad interpretation of the procedure seems to place unjustified limits on the capacity of the legislature to pass any legislation independently of the executive organ of the State, in contravention of the separation of powers and the exclusive lawmaking power of the Oireachtas contained in Article 15.2. Secondly, there are judicially-established constitutional limitations on the ability of the legislature to delegate lawmaking power to the executive (the principles and policies test); the logic that underlies this test should mean that Article 17.2 is not read to vest a veto over lawmaking in the executive, and that the legislature’s power must be respected and protected. Thirdly, the government’s power under Article 17.2 is not entirely discretionary; it must be exercised responsibly for a purpose related to finances and not for any other purpose, such as purely political opposition to a Bill. We conclude that, based on the overall framework set down by the Constitution with regard to the separation of powers, the use of the money message procedure must be at least in some way limited to ensure that the legislature can, in some real sense, make law, which is its exclusive constitutional responsibility under Article 15.

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