The controversy around the internet copyright legislation being proposed by Sean Sherlock has focussed attention on the nature of Statutory Instruments, or “secondary legislation”. What are these?
The Irish Statue Book explains them as follows:
Secondary legislation, in the form of Statutory Instruments, is governed by the Statutory Instruments Act 1947. There are five main types of statutory instrument orders, regulations, rules, bye-laws and schemes. Secondary legislation was issued in the form of Statutory Rules and Orders between 1922 and 1947.
Statutory Instruments have a wide variety of functions. They are not enacted by the Oireachtas but allow persons or bodies to whom legislative power has been delegated by statute to legislate in relation to detailed day-to-day matters arising from the operation of the relevant primary legislation. Statutory instruments are used, for example, to implement European Council Directives, designate the days on which particular District Courts sit and delegate the powers of Ministers.Specified Government Ministers and other agencies and bodies are authorised to make Statutory Instruments and several hundred instruments are made annually.
The Oireachtas research service has provided the following historical quote for further context, from the debate on the Statutory Instruments Bill, 1947 (Dáil Éireann – Volume 108 – 20 November, 1947):
Minister for Justice (Mr. Boland): “The existing arrangements have been the subject of discussion in both Houses of the Oireachtas and have been adversely commented on in the courts. In order to end the unsatisfactory position the Statutory Instruments Bill has been prepared in consultation with the various Departments. It proposes to establish a simple, uniform and reasonably flexible procedure by ensuring that when statutory instruments are made, notices to that effect will be published in Iris Oifigiúil and the instruments themselves printed and published in the official, numbered series and made readily available to the public.”
For those so inclined, a fuller definition follows.
From Murdoch’s Irish Legal Companion, 2011:
(1) An order, regulation, rule, scheme or bye-law made in exercise of a power conferred by statute: Statutory Instruments Act 1947. See also, European Communities Act 2007 s.1.
Statutory instruments principally take the form or Regulations or Orders and they are referred to as being secondary legislation. They are often formal documents by which designated Ministers exercise their power to make sub-ordinate legislation, which power is given to them by various statutes. A regulation made by a Statutory Instrument enjoys a presumption of constitutionality: Minister for Agriculture v Brennan [1999 HC] 3 IR 228.
The power to make a statutory instrument includes the power to amend or revoke that statutory instrument: Interpretation Act 2005 s.22(3). A word or expression used in a statutory instrument derives its meaning from the Act under which that instrument has been made: Interpretation Act 2005 s.19. Where a piece of secondary legislation defines a word, that definition is deemed to apply to the Act under which that piece of secondary legislation is made: Interpretation Act 2005 s.20.
Statutory instruments may be cited by number and year and also by their title e.g. SI No 46 of 1987; Courts Martial (Legal Aid) Regulations 1987. Some statutory instruments are required to be placed before the Houses of the Oireachtas (qv) and have immediate effect, while others only become effective after a specified period if they are not annulled by a resolution of either House.
The granting of leave to seek a judicial review of the making of a statutory instrument does not in any way hinder, impede or prevent the continued operation of the statutory instrument: Gorman v Minister for the Environment [2001 HC] 1 IR 306. A statutory instrument made pursuant to the European Communities Act 1972 has the status of a statute and could effectively amend an earlier statutory provision: O’Connell v EPA [2003 SC] 1 IR 532.
A statutory instrument made under the Commission to Inquire Into Child Abuse Act 2000 which sought to extend the functions of the Commission to Inquire Into Child Abuse so as to enable it to inquire into the conduct of trials of vaccine on children in institutions, was ultra vires as those events did not have any connection with “abuse” within the meaning of the 2000 Act: Hillary v Minister for Education [2005 HC] 4 IR 333.
The European Communities Act 2007 s.2, enables a Minister who is making regulations under s.3(1) of the European Communities Act 1972 to create indictable offences where in the opinion of the Minister, such an offence is necessary to give effect to the treaties or an instrument of the European institutions. In addition, s.2 enables a Minister who is making regulations under s.3(1) of the 1972 Act to provide for a fine of up to €500,000 and a term of imprisonment of up to 3 years for the purpose of ensuring that the penalties are effective, proportionate, have a deterrent effect and bear some relation to the acts or omissions in question.
S.4(1) of the 2007 Act provides that an existing regulation making power in any Act may be used to give effect to an EU measure if that EU measure relates in full to the subject matter to which the existing regulation making power relates. S.4(2) provides that regulations made under subsection (1) may perhaps go beyond the scope envisaged by the pre-existing regulation making powers in that they may cover incidental, supplementary and consequential matters. Significantly, it also permits the amendment of primary legislation by secondary legislation.
S.5(1) purports to confer retrospective validity on an unknown number of statutory instruments which would otherwise fall foul of the decisions of the Supreme Court in Browne v A.G.  3 IR 305 and also Kennedy v A.G.  2 ILRM 401. It does so by stating that such statutory instruments shall have statutory effect, ie. they must be regarded as if they were an Act of the Oireachtas.
(2) An order, regulation, rule, bye-law, warrant, licence, certificate, direction, notice, guideline or other like document made, issued, granted or otherwise created by or under an Act and references, in relation to a statutory instrument, to “made” or to “made under” include references to made, issued, granted or otherwise created by or under such instrument: Interpretation Act 2005 s.2(1).
(3) An instrument made, issued or granted under a power or authority conferred by statute: Statute Law (Restatement) Act 2002 s.1(1). A restatement Act may include a statutory instrument (ibid s.2(3)).
(4) An order, regulation, rule, scheme or bye-law made in exercise of a power conferred by— (a) an Act of the Oireachtas (including the Act of 1972), or (b) a statute that was in force immediately before the date of the coming into force of the Constitution and that continues to be of full force and effect by virtue of Article 50 of the Constitution: European Union Act 2009 s.8(3).