Is the Cabinet drunk?

Minister Coughlan seems shocked by the implied suddenness of a proposed EU directive to protect consumers. (See what she says HERE).

Did nobody tell her of the EU strategy for consumers? (See it HERE).

And what of this item of bluster from her press release?:

…the current body of legislation is a mix of the 1893 pre Independence legislation and the 1980 Act together with secondary legislation deriving from EU Directives. This has made it difficult for consumers and businesses to understand their rights and obligations.”

From a consumer point of view there is no need to go back to 1893. We purported to update the 1893 Sale of Goods Act 1893 with the Sale of Goods and Supply of Services Act 1980 and to benefit Irish consumers thereby.

It’s just guff to try to blame Britain (specifically Gladstone, in fact!) for yet another Irish Government failure.

And what are we to make of the expert group? We already pay for the personnel of the Law Reform Commission. Why should we have to pay for another group of persons duplicating its work?

Is there a special agenda that the Law Reform Commission does not know of and cannot be trusted with?

Perhaps the Commission is in the dog-house because of its proposal to facilitate multi-party litigation? Does the Government not know that that is where the EU is going? (See it HERE).

What specific document has the Government received from the EU? Minister Coughlan will be at the Council of Ministers that ultimately approves/disapproves the draft directive. Has she received better notice than the public has? (See the EU proposal HERE).

If Irish consumers are uncertain what Minister Coughlan’s expert group are looking at, send an email to EU consumer commissioner Maglena Kuneva HERE.

Maybe, just maybe, she will tell us.

Never take your eye off the ball.

The State (the Government) decided to do something. It introduced an Act, the Non-Fatal Offences against the Person Act 1997, in and through the Oireachtas, which was enacted on 19th May 1997.

Section 28 (1) of the Act provided that;

The following common law offences are hereby abolished -
(a) assault and battery,
(b) assault occasioning actual bodily harm,
(c) kidnapping,
(d) false imprisonment.�?

Something happened in Westport on 4th May 1997; consequently a Mr. Grealis was charged with assault contrary to common law.

Something happened in Mulranny on 11th May 1997; consequently Mr. Grealis was charged with assault contrary to common law.

Something happened in Cork on 3rd February 1997; consequently a Mr. Corbett was charged with assault contrary to common law and contrary to Section 42 of the Offences Against the Person Act, 1861 as amended by Section 10 Criminal Justice (Public Order) Act, 1994 (“assault occasioning actual bodily harm�?).

Section 28 (1) of Non-Fatal Offences against the Person Act 1997 came into force on the 19th August 1997. In both Grealis and Corbett, accordingly, it was not in force on the dates on which the alleged offences were committed. It was not in force at the date the summons was issued in Corbett, but was in force on the dates when the three summonses in Grealis were issued.

Mr. Grealis and Mr. Corbett were given leave by the High Court to apply by way of judicial review for an order of Prohibition of the prosecution of the offences alleged against them on the grounds that the Non-Fatal Offences against the Person Act 1997 had abolished the offences with which they were charged.

The High Court agreed and made an order of Prohibition and the Supreme Court affirmed on appeal.

During the proceedings the State cited in its support Section 1 of the Interpretation (Amendment) Act 1997, which reads:

1. – (1) Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law, then unless the contrary intention appears, such abolition, abrogation or repeal shall not -

(a) affect the previous operation of the law in relation to the offence so
abolished, abrogated or repealed or any other offence or anything
duly done or suffered thereunder,
(b) affect any penalty, forfeiture or punishment incurred in respect of any
such offence so abolished, abrogated or repealed or any other offence
which was committed before such abolition, abrogation or repeal, or
(c) prejudice or affect any proceedings pending at the time of such abolition, abrogation or repeal in respect of any such offence or any other offence.

(2) Where an Act of the Oireachtas abolishes, abrogates or otherwise repeals an offence which is an offence at common law, then unless the contrary intention appears, any proceedings in respect of any such offence or any other offence committed before such abolition, abrogation or repeal of any such offence at common law may be instituted, continued or enforced and any penalty, forfeiture or punishment in respect of any such offence at common law or any other offence may be imposed and carried out as if such offence at common law had not been abolished, abrogated or otherwise repealed.

(3) This section applies to an offence which is an offence at common law abolished, abrogated or otherwise repealed before or after the passing of this Act.

(4) If, because of any or all of its provisions, this section would, but for the provisions of this subsection, conflict with the constitutional rights of any person, the provisions of this section shall be subject to such limitations as are necessary to secure that they do not so conflict, but shall otherwise be of full force and effect.�?

The Supreme Court held that this could only be read prospectively (into the future) and did not avail the State in its arguments. (The Supreme Court also found that the Act, as so read, was constitutional. It also found that the offence “assault occasioning actual bodily harm” was a common law offence.)

There is no excuse for a grown adult to contemplate going to Dail Eireann during family day, or worse still, going there.

To do so is to play the fool.

The Dail is firmly under the thumb of the Government, whereas our Constitution envisages that it should be the reverse. The principle purpose of a Constitution is to rein in the Executive.

Representative democracy and the separate of powers are designed for, inter alia, the same purpose.

To be offered a tour of the Dail building when the functions of the Dail have been fully drained away, in substance, is to be treated like a fool. To take it is to endorse the situation, to clothe a scandal with validity.

No effort is afoot to change this situation of loss of power and function by Dail Eireann.

Not only does the Dail have little real control over the Bills and Acts passing through and emerging from the legislative process, it has next to no control over secondary legislation (Statutory Instruments) implementing the Acts. As the Ombudsman noted;

A particular area of concern is the huge amount of secondary legislation arising directly at national level or as a result of European Union membership. Most of this legislation is not subject to any parliamentary scrutiny and can give rise to the so-called democratic deficit. The Ombudsman could perhaps be of service to the Oireachtas in drawing attention to the not infrequent instances where delegated legislation seems to go further than intended by the primary legislation. In this context, I have noted the recommendation of the Constitution Review Group that consideration should be given to an amendment to Article 15.2.1 of the Constitution so that the Oireachtas should have the power to authorise by law the delegation of power to either the Government or a Minister to legislate using the mechanism of a statutory instrument. I have suggested to the All Party Oireachtas Committee on the Constitution that the Ombudsman should be granted specific powers in cases where delegated legislation could have an adverse effect.”

What the Ombudsman was warning against is that law was being made in “not infrequent instances�?, which had not emanated from the Dail at all.

That’s why no one should go to the Family days.