Future of the Money Message

Dame_Enda

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Should the Money Message be abolished or restricted?

Today the Ceann Comhairle blocked a vote on a PBPAAA motjon to prevent the money-message being used where the costs imposed by a bill are marginal or incidental. The CC, Sean O'Feaghaill justified his decision on constitutional grounds. Article 17.2 of the Constitution allows the government to block a bill by invoking the "money-message", which means vetoing it because of costs it imposes on the taxpayer.

50 bills have been blocked by the FG government on this basis, including Mary Blacks ban on trade with Israeli settlements, and Brid Smith's Climate Change Bill to ban oil drilling.
 


Barroso

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I believe that it should be abolished.
As it stands it is a very effective shackle on the opposition at a time when a weak government cannot impose its will on the Oireachtas.
When a government has a majority, it is not needed, as the government can vote any opposition proposal down.
 

Finbar10

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Constitutionally, I'd say it's on shaky ground. PBP tried to bring a motion to change standing orders but the Ceann Comhairle ruled it out of order (citing constitutionality issues among other things). I doubt there's the support there to pass such standing orders anyway. It sort of is and sort of isn't a minority government. While Fianna Fáil are happy with the "money message" current setup, then there probably isn't going to be a majority to change this mechanism. There is the option of the courts. PBP were considering taking an injunction to force the Ceann Comhairle to allow their motion, which might be interesting. Of course, it's a motion that would probably lose anyway.
 

Baron von Biffo

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Constitutionally, I'd say it's on shaky ground. PBP tried to bring a motion to change standing orders but the Ceann Comhairle ruled it out of order (citing constitutionality issues among other things). I doubt there's the support there to pass such standing orders anyway. It sort of is and sort of isn't a minority government. While Fianna Fáil are happy with the "money message" current setup, then there probably isn't going to be a majority to change this mechanism. There is the option of the courts. PBP were considering taking an injunction to force the Ceann Comhairle to allow their motion, which might be interesting. Of course, it's a motion that would probably lose anyway.
The courts would throw out an application for such an injunction in jig time because Art.10 grants the sole authority for making the rules governing Dail business to Dail Eireann

Additionally Art. 22 provides the constitutional mechanism for checking government abuse of the Money Bill provision.

That article says that a majority of the Seanad (when at least 30 members are present) may ask the president to refer the question of whether a bill is a Money Bill to a Committee of Privileges.

If the president, after consulting the Council of State accedes to their request, he nominates a Committee of Privileges consisting of an equal number of TDs and Senators and chaired by a SC judge to decide the matter. Their decision is final.
 

Finbar10

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The courts would throw out an application for such an injunction in jig time because Art.10 grants the sole authority for making the rules governing Dail business to Dail Eireann

Additionally Art. 22 provides the constitutional mechanism for checking government abuse of the Money Bill provision.

That article says that a majority of the Seanad (when at least 30 members are present) may ask the president to refer the question of whether a bill is a Money Bill to a Committee of Privileges.

If the president, after consulting the Council of State accedes to their request, he nominates a Committee of Privileges consisting of an equal number of TDs and Senators and chaired by a SC judge to decide the matter. Their decision is final.
You quote article 22 of the constitution. That says that it is basically the Ceann Comhairle who is supposed to decide if a bill is a money bill or not (subject to this theoretical Seanad money bill appeal, which has never once been invoked ever, which says a lot about our Seanad and its role as a supposed practical check on the Dáil). Current standing orders, though, effectively mean it is the government, not the Ceann Comhairle, who makes this call. It can't even get to committee stage unless the government has tagged a "money message" to it. There is a token sop alright to the Ceann Comhairle's power in that when a bill has passed all stages he still gets to certify it as a money bill. However, it'll never get to that point in the first place without government say so.

PBP's proposed changes to the standing orders effectively proposed to allow the Ceann Comhairle to make this call (as in the constitution) if a money message wasn't attached (plus there's a bit of non-binding guidance to suggest a not too narrow view of what constitutes a money bill). The Ceann Comhairle is Fianna Fáil. It suits Fianna Fáil not to have to vote on these bills, many of whom are not money bills according to a reasonable interpretation of what article 22 describes as a money bill. The Ceann Comhairle does not want to have to make embarrassing calls on these bills. Fianna Fáil does not want to have to make embarrassing votes on these so-called "money" bills. Ruling the PBP's motion out of order suits everyone.

Sure, the courts are very slow to get involved in Dáil business (very occasionally they do, e.g. Abbeylara). It's very unlikely they will do so here. Nonetheless, the current mechanism and how it's being used is not really in keeping with the constitution. At minimum, the Ceann Comhairle should be standing up and explicitly ruling these bills as being money bills or not, as is his constitutional power, and not hiding behind government decisions.

Here's the current version of standing order 179:

Bills involving the appropriation of revenue or other public moneys.
179.
(1) A Bill which involves the appropriation of revenue or other public moneys, other than incidental expenses, shall not be initiated by any member, save a member of the Government.
(2) The Committee Stage of a Bill which involves the appropriation of revenue or other public moneys, including incidental expenses, shall not be taken unless the purpose of the appropriation has been recommended to the Dáil by a Message from the Government. The text of any Message shall be printed on the Order Paper.
(3) An amendment to a Bill which could have the effect of imposing or increasing a charge upon the revenue may not be moved by any member, save a member of the Government or Minister of State.
Here was the PBP's suggested replacement:

(1) A Bill which involves the appropriation of revenue or other public moneys for the purpose of Article 17.2 of the Constitution shall not be initiated by any member, save a Member of the Government.
(2)(a) The Committee Stage of a Bill which involves the appropriation of revenue or other public moneys for the purpose of Article 17.2 of the Constitution shall not be taken unless the purpose of the appropriation has been recommended to the Dáil by a Message from the Government. The text of any Message shall be printed on the Order Paper.
(b) Where a decision (hereafter the ‘first decision’) has been made in respect of a Bill which appeared on the Order Paper immediately prior to the coming into effect of this paragraph that that Bill is a Bill of the kind referred to in the paragraph which has been replaced by this paragraph and further where no Message from the Government has been printed on the Order Paper on foot of that first decision, the Ceann Comhairle shall, on application to him or her in writing by any member, decide whether that Bill is a Bill of the kind referred to in paragraph (a) of this paragraph and on the making of that decision the first decision shall be deemed to have no effect.
(3)(a) A Bill which may upon its enactment be implemented entirely out of moneys provided by the Oireachtas pursuant to the Appropriation Act (i.e. out of voted expenditure) or another Act (i.e. out of non-voted expenditure) shall be deemed to be a Bill which does not involve the appropriation of revenue or other public moneys for the purpose of Article 17.2 of the Constitution.
(b) For the avoidance of doubt, and without prejudice to the generality of sub-paragraph (b), a Bill shall not be deemed to be a Bill for the appropriation of revenue or other public moneys for the purpose of Article 17.2 of the Constitution solely by virtue of the fact that;
(i) it creates a new criminal offence,
(ii) it creates a new basis of civil liability,
(iii) it provides for the making of regulations by a Minister or public body,
(iv) its implementation may give rise to legal costs to a Government Department or public body, or
(v) it may give rise to a need to compensate a person or persons arising from a change in the law which it prescribes.
(4) An amendment to a Bill which, if adopted, would render the Bill a Bill which involves the appropriation of revenue or other public moneys within the meaning of paragraph (3) may not be moved by any member, save a member of the Government or Minister of State.
 

Baron von Biffo

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You quote article 22 of the constitution. That says that it is basically the Ceann Comhairle who is supposed to decide if a bill is a money bill or not (subject to this theoretical Seanad money bill appeal, which has never once been invoked ever, which says a lot about our Seanad and its role as a supposed practical check on the Dáil). Current standing orders, though, effectively mean it is the government, not the Ceann Comhairle, who makes this call. It can't even get to committee stage unless the government has tagged a "money message" to it. There is a token sop alright to the Ceann Comhairle's power in that when a bill has passed all stages he still gets to certify it as a money bill. However, it'll never get to that point in the first place without government say so.

PBP's proposed changes to the standing orders effectively proposed to allow the Ceann Comhairle to make this call (as in the constitution) if a money message wasn't attached (plus there's a bit of non-binding guidance to suggest a not too narrow view of what constitutes a money bill). The Ceann Comhairle is Fianna Fáil. It suits Fianna Fáil not to have to vote on these bills, many of whom are not money bills according to a reasonable interpretation of what article 22 describes as a money bill. The Ceann Comhairle does not want to have to make embarrassing calls on these bills. Fianna Fáil does not want to have to make embarrassing votes on these so-called "money" bills. Ruling the PBP's motion out of order suits everyone.

Here's the current version of standing order 179:


Here was the PBP's suggested replacement:
I hope you'll forgive me reordering your post slightly. This was to make my response a little more coherent.

The PBP proposal looks like something that was put together by a committee where everyone has had his/her ego stroked by getting their few words in.

It's difficult to understand and astonishingly clumsy but what it appears to be seeking to achieve is to use Standing Orders to overrule the constitution by obviating the requirement for a money message signed by the Taoiseach.

Obviously the CC can't accede to a request to act unconstitutionally.

Sure, the courts are very slow to get involved in Dáil business (very occasionally they do, e.g. Abbeylara). It's very unlikely they will do so here. Nonetheless, the current mechanism and how it's being used is not really in keeping with the constitution.
It's not that the courts are slow to interfere in Dail business, they never do so, full stop. The Abbeylara decision wasn't an interference with Dail power, rather it was to prevent the Oireachtas usurping the powers of the courts.

The subsequent rejection of Howlin's horrific proposal for setting aside that judgement showed that, at least on that occasion, the SC was at one with the people.

At minimum, the Ceann Comhairle should be standing up and explicitly ruling these bills as being money bills or not, as is his constitutional power, and not hiding behind government decisions.
Which takes us back to the start and the fact that the constitution does provide a procedure for adjudicating on the correctness of a decision to certify a bill as a Money Bill.

If PBP can't muster the support required to achieve their aims constitutionally they can't be allowed to do so by sleight of hand.
 

Finbar10

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Not just Abbeylara but the recent Angela Kerins PAC case too (Dáil procedures weren't up to scratch in both cases in protecting constitutional rights).

There is a mechanism (the Ceann Comhairle decides).
There is a reasonable case because of article 17.2 that if the government declares a bill a money bill (with a "money message" or whatever), then the Ceann Comhairle shouldn't overturn that. Though the wording of that is a bit ambiguous (almost sounds something like a finance bill there).

However, the converse is IMO much more dubious. The Ceann Comhairle seems to be hiding behind standing order 179, which states: "A Bill which involves the appropriation of revenue or other public moneys, other than incidental expenses, shall not be initiated by any member, save a member of the Government. "
That is a very restrictive definition (basically ruling out anything with the merest whiff of money at all). Basically, the Ceann Comhairle's reasoning is that if the government hasn't affixed a money message and there's the slightest money association (possible legal costs or civil liability etc.), then it's a money bill and hence cannot go to committee. I think it would be useful if the courts clarified this further or at least state that it should be the Ceann Comhairle's call in standing orders as to whether it is a non-money bill (as the constitution indicates he can). Having such a limited and restrictive definition in standing orders (compared to the actual constitutional definition) and not allowing the Ceann Comhairle a say seems unconstitutional to me.
 

Baron von Biffo

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Not just Abbeylara but the recent Angela Kerins PAC case too (Dáil procedures weren't up to scratch in both cases in protecting constitutional rights).
Neither case interfered with Dail business.

There is a mechanism (the Ceann Comhairle decides).
There is a reasonable case because of article 17.2 that if the government declares a bill a money bill (with a "money message" or whatever), then the Ceann Comhairle shouldn't overturn that. Though the wording of that is a bit ambiguous (almost sounds something like a finance bill there).

However, the converse is IMO much more dubious. The Ceann Comhairle seems to be hiding behind standing order 179, which states: "A Bill which involves the appropriation of revenue or other public moneys, other than incidental expenses, shall not be initiated by any member, save a member of the Government. "
That is a very restrictive definition (basically ruling out anything with the merest whiff of money at all). Basically, the Ceann Comhairle's reasoning is that if the government hasn't affixed a money message and there's the slightest money association (possible legal costs or civil liability etc.), then it's a money bill and hence cannot go to committee. I think it would be useful if the courts clarified this further or at least state that it should be the Ceann Comhairle's call in standing orders as to whether it is a non-money bill (as the constitution indicates he can). Having such a limited and restrictive definition in standing orders (compared to the actual constitutional definition) and not allowing the Ceann Comhairle a say seems unconstitutional to me.
On the one hand you're protesting that things are unconstitutional but on the other you're demanding that the Dail adopts unconstitutional standing orders and that the courts act unconstitutionally.

The courts have no role in this whatsoever. The constitutional mechanism for questioning the Ceann Comhairle's decision is via the Seanad requesting the President to establish a Committee of Privileges to examine the question.

That's it. There's nothing more to be done.

PBP can fart around with daft proposals to introduce unconstitutional standing orders till the cows come home but they won't get away with it. If they really want change they'll have to lobby Senators or they can push for a referendum to amend the constitution.
 

Finbar10

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Neither case interfered with Dail business.

On the one hand you're protesting that things are unconstitutional but on the other you're demanding that the Dail adopts unconstitutional standing orders and that the courts act unconstitutionally.

The courts have no role in this whatsoever. The constitutional mechanism for questioning the Ceann Comhairle's decision is via the Seanad requesting the President to establish a Committee of Privileges to examine the question.

That's it. There's nothing more to be done.

PBP can fart around with daft proposals to introduce unconstitutional standing orders till the cows come home but they won't get away with it. If they really want change they'll have to lobby Senators or they can push for a referendum to amend the constitution.
Where did I argue that the proposed PBP standing orders were unconstitutional? The proposed standing order only applies to the case where this is no money message, so the article 17.2 case I mentioned above does not apply.
Why do you think the proposed PBP updated version of standing order 179 is unconstitutional?

They might not have won the vote on changing standing orders but I can't see why the Ceann Comhairle should have blocked the vote itself.

The judge thought there was at least an arguable case that the current interpretation of the "money message" procedure was too broad. I suppose otherwise a minority government can effectively block almost all non-government bills without resource (except if the Seanad is opposition controlled, which it almost never is). Not a healthy democratic setup.
 

Baron von Biffo

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Where did I argue that the proposed PBP standing orders were unconstitutional? The proposed standing order only applies to the case where this is no money message, so the article 17.2 case I mentioned above does not apply.
I never said you did.

Why do you think the proposed PBP updated version of standing order 179 is unconstitutional?
Because they're seeking to circumvent the constitutional requirements for money bills.

They might not have won the vote on changing standing orders but I can't see why the Ceann Comhairle should have blocked the vote itself.
Because his job is to chair the Dail in accordance with the constitution.

The judge thought there was at least an arguable case that the current interpretation of the "money message" procedure was too broad.
What judge?

I suppose otherwise a minority government can effectively block almost all non-government bills without resource (except if the Seanad is opposition controlled, which it almost never is). Not a healthy democratic setup.
It's a minority government with a C&A deal so it enjoys a majority in the Dail.

What's undemocratic about a majority of the people's elected representatives prevailing in a parliament?
 

Finbar10

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Because they're seeking to circumvent the constitutional requirements for money bills.
But are they money bills? You still haven't actually explained why the PBP's standing order circumvents constitutional requirements.


Because his job is to chair the Dail in accordance with the constitution.
I suppose that's one of the issues. Was he chairing it in accordance with the constitution? Was he right to block a vote on "unconstitutional" standing orders? Again, why are the PBP standing orders unconstitutional?

What judge?
Justice Garrett Simons in the High Court today.
@gavreilly was twetting coverage earlier:
"Justice Simons says he is satisfied there is an arguable case that the Government's interpretation of the money message procedure is 'overly generous or overly broad' "

It's a minority government with a C&A deal so it enjoys a majority in the Dail.

What's undemocratic about a majority of the people's elected representatives prevailing in a parliament?
How can we determine if there is or isn't a majority of the people's elected representatives if they are not allowed to even vote on these bills?
 

Baron von Biffo

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But are they money bills? You still haven't actually explained why the PBP's standing order circumvents constitutional requirements.
As I said earlier, their proposed amendment is really clumsily written but it appears to be attempting to allow the Dail to pass money bills without the constitutionally required government message signed by the Taoiseach.

I suppose that's one of the issues. Was he chairing it in accordance with the constitution? Was he right to block a vote on "unconstitutional" standing orders? Again, why are the PBP standing orders unconstitutional?
His duty demands that he disallows attempts to circumvent the constitution.

Justice Garrett Simons in the High Court today.
@gavreilly was twetting coverage earlier:
"Justice Simons says he is satisfied there is an arguable case that the Government's interpretation of the money message procedure is 'overly generous or overly broad' "
Would you have a link? I don't have a twitter account.

How can we determine if there is or isn't a majority of the people's elected representatives if they are not allowed to even vote on these bills?
Because if the majority didn't agree then the government couldn't block them.
 

Finbar10

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As I said earlier, their proposed amendment is really clumsily written but it appears to be attempting to allow the Dail to pass money bills without the constitutionally required government message signed by the Taoiseach.
Sure, a money bill probably needs some kind of "money message" according to article 17.2:
Dáil Éireann shall not pass any vote or resolution, and no law shall be enacted, for the appropriation of revenue or other public moneys unless the purpose of the appropriation shall have been recommended to Dáil Éireann by a message from the Government signed by the Taoiseach.
The phraseology is a bit different to article 22 (this article also talks about the finance bill and finance resolutions so there's a bit of uncertainty as to whether money bills are actually being talked about here. Anyway, we'll assume they are.

What happens if a bill comes before the Ceann Comhairle and a money message is not attached? This does not mean he has to throw it out. It leaves him with two choices. He can determine it is a money bill. If so and it has no money message then he has to throw it out as per article 17.2 However, what if he determines it is *not* a money bill. Then having no "money message" is not a problem for a non-money bill and he can let the bill proceed. The new standing order would allow this case. The issue then is what is a money bill. PBP are arguing that the current standing order definition is too restrictive (the constitutional one seems more expansive). No constitutional provision is broken if a bill without a money message is determined by the Ceann Comhairle to be not a money bill. That's all the PBP standing order allows. Seems perfectly constitutional to me.

His duty demands that he disallows attempts to circumvent the constitution.
See my explanation above. I still don't see why it is unconstitutional.


Would you have a link? I don't have a twitter account.
Gavan Reilly (@gavreilly) | Twitter

Because if the majority didn't agree then the government couldn't block them.
Come to think of it, they are actually getting to second stage so have been voted on and getting a Dáil majority (a majority to send them to committee stage). It's just that they are blocked then on this technicality.

I suppose if there really is a majority, the Dáil could remove the Ceann Comhairle and put in another one (something brought up in the hearing yesterday), but I suppose, as usual, Fianna Fáil is talking out both sides of its mouth on this issue. It's prepared to vote in favour in some of these bills but not to remove its own Fianna Fáil Ceann Comhairle. They are happy to hide behind his contention that the standing orders are unconstitutional. I suppose it would be useful if a court declared they are not unconstitutional. Then at least we could have a vote on the standing orders (and see if Fianna Fáil do or do not support them).
 

Baron von Biffo

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Sure, a money bill probably needs some kind of "money message" according to article 17.2:
The phraseology is a bit different to article 22 (this article also talks about the finance bill and finance resolutions so there's a bit of uncertainty as to whether money bills are actually being talked about here. Anyway, we'll assume they are.
Where are you seeing uncertainty? Art. 22 is where money bills are defined, there's no ambiguity at all there.

What happens if a bill comes before the Ceann Comhairle and a money message is not attached? This does not mean he has to throw it out. It leaves him with two choices. He can determine it is a money bill. If so and it has no money message then he has to throw it out as per article 17.2 However, what if he determines it is *not* a money bill. Then having no "money message" is not a problem for a non-money bill and he can let the bill proceed. The new standing order would allow this case. The issue then is what is a money bill. PBP are arguing that the current standing order definition is too restrictive (the constitutional one seems more expansive). No constitutional provision is broken if a bill without a money message is determined by the Ceann Comhairle to be not a money bill. That's all the PBP standing order allows. Seems perfectly constitutional to me.


See my explanation above. I still don't see why it is unconstitutional.
But the bulk of bills have no money message attached because it's not required. No amendment to standing orders is needed for those.

What PBP is peeved at is that bills have money messages attached which they deem to be unnecessary or an abuse of process.

Their proposal appears to be an attempt to circumvent the constitution by inserting into SO a new definition of a money bill and to limit the constitutional prerogatives of the government and the Ceann Comhairle.

Thanks for that.

No doubt it's because, as another poster told me recently, I'm a 'sad old c@#t' but I find Twitter difficult to follow. Some interesting snippets though from what I can glean from that.

It will be very interesting to read the judgement (and the SC judgement after the inevitable appeal) when the case is over.

Come to think of it, they are actually getting to second stage so have been voted on and getting a Dáil majority (a majority to send them to committee stage). It's just that they are blocked then on this technicality.
Even counsel for PBP says that this is no mere technicality. (See your Twitter link).

I suppose if there really is a majority, the Dáil could remove the Ceann Comhairle and put in another one (something brought up in the hearing yesterday), but I suppose, as usual, Fianna Fáil is talking out both sides of its mouth on this issue. It's prepared to vote in favour in some of these bills but not to remove its own Fianna Fáil Ceann Comhairle.
I think you're being unfair to Ó'Fearghaíl. He enjoys the respect of most TDs and has a reputation for fairness and impartiality. There really isn't any credible case that he's making decisions in furtherance of a FF agenda.

They are happy to hide behind his contention that the standing orders are unconstitutional. I suppose it would be useful if a court declared they are not unconstitutional. Then at least we could have a vote on the standing orders (and see if Fianna Fáil do or do not support them).
If the court were to overrule the Ceann Comhairle then we really would be in the middle of a full blown constitutional crisis. He would almost certainly resign and his successors would be fettered in the discharge of their duties as every disgruntled TD would be off to the courts to challenge their decisions.
 


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