knowledge 25 September 2020 |

New Government Legislation Programme Published

This briefing analyses key components of the Autumn Programme under six headings:

• Politics and Government

• Finance and Financial Services Regulation

• Business, Enterprise and Innovation

• Litigation and the Courts

• Housing and Planning, Property and Construction

• Energy and Environment

1. Politics and Government

In the seeming certainty that the transition period for the UK exiting the European Union will not be extended beyond 31 December 2020, Brexit considerations have been added to the list of priority legislation for the autumn session.

The Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill is to provide for legislative needs arising at the end of the transition period. It is expected that the Bill will repeat some provisions of the 2019 Act of the same name which are yet to be commenced. The General Scheme of the legislation, also known as the Brexit Omnibus Bill, was published to the website of the Department of Foreign Affairs in early September 2020. It is complemented by the Brexit Readiness Action Plan, a report suggesting potential challenges of differing Brexit scenarios and offering solutions for businesses and citizens, alongside the likely Government response¹.

Work has commenced on the Electoral (Reform) Bill, which is to establish a statutory, independent Electoral Commission in Ireland. The Commission would take over all competences related to voting and the administration of elections and referendums, to include the transfer of functions from the Register of Political Parties and Constituency Commission, among others. The Bill is also expected to regulate online political advertising and allow for COVID-19 disturbances in regulating the holding of electoral events where restrictions are in place.

2. Finance & Financial Services Regulation

Recent months have seen a spate of emergency financial measures combatting the effects of the COVID-19 pandemic and the Government’s list of priority legislation continues the theme, including planned amendments to the legislation governing credit unions and to the personal insolvency legislation. Each of these bills is also listed for pre-legislative scrutiny.

The Finance Bill is also included in the list of priority legislation as is the Investment Limited Partnerships (Amendment) Bill (the “ILP Bill”). As referenced in June’s Programme for Government, the Finance Bill’s objective is to deal with the warehousing of tax liabilities, including the ring-fencing of VAT and PAYE tax debts incurred while trading was restricted. The Bill aims to give statutory effect to Budget Day decisions and offer new supports to SMEs. The Irish Tax Institute published its suggested amendments to the Bill in July this year² and it remains to be seen whether these will be adopted in the draft legislation.

The ILP Bill, a draft of which was published on 21 September 2020, incorporates significant amendments to enhance the transparency applied to Ireland’s fund vehicles by extending Anti Money Laundering Beneficial Ownership requirements to both Investment Limited Partnerships and to Common Contractual Funds. It also makes a number of technical amendments to the ICAV Act 2015.

Bills that are intended to undergo pre-legislative scrutiny stage in the Autumn, include, in particular the Consumer Protection (Regulation of Retail Credit Firms) Bill and the Central Bank (Amendment) Bill. The first of these is intended to ensure that every entity providing credit, hire purchase, PCPs or consumer hire agreements must register with the Central Bank as a “retail credit firm” before trading. For its part, the Central Bank (Amendment) Bill is intended to foster a greater sense of accountability and responsibility within regulated institutions in the wake of the Tracker Mortgage Examination, including through the introduction of a Senior Executives Accountability Regime.

Looking beyond Ireland, the European Stability Mechanism (Amendment) Bill seeks to give effect to amendments to the European Stability Mechanism (“ESM”) Treaty, the legislative source of the organisation governing all future Eurozone bail-outs.

Bills listed in the “All Other Legislation” section of the Autumn Programme include:

• the Credit Review Bill, which proposes to put the instrument that established the Credit Review Office on a statutory footing³;

• the Credit Union Interest on Loans Bill, which is intended to increase the maximum monthly interest rate on credit union loans, with the power to amend the maximum rate in future being transferred to the relevant minister⁴; and

• the EU Restrictive Measures Bill, which will allow the relevant minister to add statutory instruments (“SIs”) giving effect to EU regulations on ‘restrictive measures’ to the lists of designated SIs and enactments, meaning that a breach of such an SI will fall within the Central Bank of Ireland’s administrative sanctions procedure.

3. Business, Enterprise and Innovation

The Companies (Corporate Enforcement Authority) Bill is at the pre-legislative scrutiny stage. The General Scheme for this Bill proposed legislation to give effect to the establishment of the Office of the Director of Corporate Enforcement (the “ODCE”) as a stand-alone agency called the “Corporate Enforcement Authority” (the “Authority”). The General Scheme proposed that the Authority will have extended powers and autonomy and that many of the functions to be conferred on the Authority will re-enact the corresponding provisions of the Act relating to the ODCE. It also envisaged that the Bill would give effect to recommendations of the Company Law Review Group in relation to corporate governance, shares and share capital (see here).

The Competition (Amendment) Bill proposes enhanced competition law enforcement powers for the Competition and Consumer Protection Commission (the “CCPC”). This Bill is to transpose the requirements of the ECN+ Directive⁵ into Irish law before 4 February 2021. These requirements aim to strengthen national competent authorities by equipping them with improved investigative powers and the ability to deal out proportionate sanctions for competition law breaches. The CCPC, ComReg, the Director of Public Prosecutions and the Irish courts are all National Competition Authorities in Ireland for the purposes of EU competition law.

Amendments to the Charities Act 2009 are expected under the Charities (Amendment) Bill, the legislative heads of which are expected soon. Changes to accounting, audit and reporting requirements for charities are envisioned, as well as amendments to trustee responsibilities and the current operation of the Register of Charities.

Industrial and provident societies in Ireland are subject to an array of legislation dating as far back as 1893. The purpose of the Co-operative Societies Bill, the legislative heads of which are being prepared, is to help consolidate and modernise the current legal framework to suit the range of organisations using the co-operative model in Ireland.

As part of the Government’s response to difficulties faced by businesses during the COVID-19 crisis, the Companies (Miscellaneous Provisions) (Covid-19) Act 2020 was enacted and commenced last month. The Act contains measures that provide entities with temporary flexibility to hold annual general meetings (“AGMs”), extraordinary general meetings (“EGMs”) and creditors’ meetings including by virtual means. The Credit Union (COVID-19) (Amendment) Bill proposes to similarly allow credit unions to temporarily conduct virtual AGMs and EGMs, providing for remote attendance with the option of electronic voting.

At the pre-legislative scrutiny stage, the Personal Insolvency (Amendment) (No 1) Bill proposes a small number of amendments to the Personal Insolvency Acts in relation to COVID-19. The Autumn Programme also notes that work is underway on the Personal Insolvency (Amendment) (No 2) Bill to more generally update the law in this area.

The Limited Partnership Act 1907, which governs the registration of limited partnerships in Ireland, is expected to be reformed under the Limited Partnership Bill, the legislative heads of which are being prepared. This type of limited partnership does not affect solicitors, whose partnerships are governed by the Legal Services Regulation Act 2015 and differs from the new regime for investment limited partnerships, as discussed above in relation to funds.

Following the close of a public consultation process last September, work has commenced on the modernisation of the Registration of Business Names Act 1963. The Act provides for the registration of all businesses run by individuals, body corporates or partnerships where the identification of all entities behind the business is not clear from that business’ name. In this way, the registration of business names in accordance with the Act allows both customers and suppliers to know the legal entity behind a business name, thus providing transparency for those doing business.

Pre-legislative scrutiny has concluded for the Communications (Data Retention and Disclosure) Bill, which will update the law in Ireland on the holding of data in light of jurisprudence from the Court of Justice of the EU and, in particular, the Tele2 case⁶. New provisions would allow for the limited retention and use of traffic and location data in the investigation of serious crime where ministerial or judicial authorisation has been given.

The Protected Disclosures (Amendment) Bill is also listed for pre-legislative scrutiny. This Bill proposes to amend the Protected Disclosures Act 2014 in order to transpose the EU Whistleblowing Directive⁷ into Irish law.

The requirements of two further EU Directives⁸ (on consumer contracts for the sale of goods and, on consumer contracts for the supply of digital content and digital services) are to be transposed into Irish law by the Consumer Rights Bill. A further purpose of the Bill, for which heads are being prepared, is to update and consolidate statutory provisions on consumer rights and remedies in relation to contracts for the supply of non-digital services, unfair contract terms and information and cancellation rights.

European co-operation and national security prompt the Screening of Investment into Ireland Bill, which proposes to establish a framework for sharing information between Member States and the European Commission, where potential sources of foreign direct investment are deemed capable of posing a risk to state security or public safety.

Preparatory work has also begun on the Cybercrime Bill, to introduce the remaining provisions of the Council of Europe Convention on Cybercrime⁹ into Irish law so that the Convention may be ratified.

4. Litigation and the Courts

Work has commenced on the Defamation (Amendment) Bill following a 2016 public consultation. While the Bill remains in its infancy, it is expected to develop alternative dispute resolution techniques and bolster the role of the Press Council in defamation allegations. Solicitor-client advice as to the potential for out-of-court dispute resolution may become mandatory, akin to that of mediation for civil claims under the Mediation Act 2017.

Reform of court procedure is proposed in the Courts and Civil Law (Miscellaneous Provisions) Bill. Although not a priority for the Autumn Programme, this extensive Bill (of 122 provisions) would provide for electronic courts services and the reform of courts administration and legal services regulation. Other targeted areas include the law in relation to licensing, land and conveyancing, international protection, civil legal aid, bankruptcy and insolvency and immigration.

Similarly, and following the 2018 Review of Economic Migration Policy, the Employment Permits (Consolidation and Amendment) Bill proposes to update that regime by which skilled non-EEA migrants are allowed to enter the State for employment purposes. The policy focus of supporting the economy by ‘filling in gaps’ in the skills market is retained in the draft General Scheme of the Bill. Proposed amendments include the introduction of a seasonal employment permit and revision of the labour market needs test. Working parents are also likely to benefit from the Autumn Programme as two new bills dealing with parental leave and associated benefits feature on the list of lesser-priority commitments¹⁰.

5. Housing and Planning, Property and Construction

Housing is stated to be a priority for the new Government: it was one of the only electoral promises to merit an unambiguous ‘mission’ of its own under the June 2020 Programme for Government and it is well-represented in the Autumn Programme.

The Affordable Housing Bill seeks to introduce a State-backed home purchase scheme to facilitate those who would otherwise be frozen out of the market by high prices. The supply of social and affordable housing will also be prioritised, bolstered by a more active Land Development Agency, the statutory powers and remit of which are to be advanced in a Land Development Agency Bill. The impetus of ‘use it or lose it’ provisions for planning permission is expected in the Planning Development (Amendment) Bill. COVID-19 continues to loom over the construction industry and further emergency powers will also be contained in the latter Bill to protect the integrity of the planning system where further restrictions may become necessary.

Pre-legislative scrutiny has yet to be set for the Housing and Planning and Development (Amendment) Bill, which is set to reform the judicial review provisions contained in the Planning and Development Act 2000. It is likely that the Bill will also address issues of substitute consent arising in the recent case of An Taisce v An Bord Pleanála¹¹. Finally, the Bill is also to amend provisions relating to tenant purchase rights for publicly-owned housing.

In the private rented sector, further enhanced tenant protections, particularly during a landlord’s receivership, are signalled as coming down the tracks in the Housing and Residential Tenancies Bill, which also envisages tenancies of indefinite duration and further regulation of deposits.

Planning reform is to extend beyond the Irish coast with the introduction of the Marine Planning and Development Management Bill, which will unlock the potential for up to 5GW of offshore wind energy before 2030. This proposes a development management regime for Ireland’s maritime area, guided by a Marine Planning Policy Statement, which sets out key priorities and principles for State bodies to observe in future marine planning. The legislation follows the recent public consultation on the National Marine Planning Framework, which examined in detail Ireland’s future with the sea. On a related point, initial approval has been given for a consolidation and update of the State’s maritime jurisdiction legislation through the Maritime Jurisdiction Bill.

The transfer of the balance of heritage functions to the Department of Housing, Planning and Local Government has been postponed pending further amendments to the Planning and Development and Wildlife Acts, in order to respect the Supreme Court decision in Mulcreevy v Minister for Environment, Heritage and Local Government¹². A more general overhaul of heritage provisions is expected with the Monuments and Archaeological Heritage Bill which is to establish a new Register of Monuments to replace the multiple systems of monument protection currently at play.

Health and safety features in the Autumn Programme through the Emergency Management and Fire and Public Safety Bill, on which drafting has begun. It will consolidate and update the Fire Services Acts and consolidate emergency management practice at a national and local level. Provisions enhancing safety at funfairs and governing the licensing of indoor events will also feature.

The Property Services Regulation (Amendment) Bill will revise the Property Services Regulation Act 2011 in light of EU legislation and jurisprudence on the supply of services in the internal market and the recognition of professional qualifications.

Some standing proposals also feature in the Autumn Programme. Legislative heads are in preparation for the Tailte Eireann Bill, which would see the establishment of a new eponymous regulatory body, combining Ordnance Survey Ireland, the Commissioner of Valuation, the Boundary Surveyor and the Property Registration Authority. Heads have also been approved for the Building Control (Construction Industry Register Ireland) Bill, which will see the register of builders, contractors and specialist sub-contractors, currently maintained by the Construction Industry Register Ireland, placed on a statutory footing.

6. Energy and Environment

The Climate Action (Amendment) Bill proposes to legitimise the ambitious targets outlined in the June 2020 Programme for Government. Under the ‘Green New Deal’, the Government committed to reducing emissions by 7% from 2021 to 2030 with the aim of achieving net zero emissions by 2050. The Government also pledged to ban the sale of fossil fuel cars by 2030 and to establish a National Long Term Climate Strategy¹³ and an annual Climate Action Plan, on a statutory basis. Legislative heads for the Bill were approved in July 2020 and the Bill is on the priority list for the autumn session.

Similarly, the Agriculture Appeals (Amendment) Bill, which is intended to align forestry licensing and appeals processes with other, similar planning processes, is marked as a priority.

To comply with Ireland’s obligations under the Water Framework Directive¹⁴, a regime for the control of the abstraction of water on a risk-based approach is proposed through the Water Environment (Abstractions) Bill. The EU’s influence will be further felt in moves towards a circular economy – the process of sustainably stimulating growth while observing climate goals. Three SIs to form the basis of the circular economy have been signed since the commencement of the new Government and the Waste Management (Circular Economy) Bill is in the early stages of drafting. Ambitious forthcoming measures include halving Irish food waste by 2030 and the banning of certain single-use plastics.

The Autumn Programme marks the beginning of several regulatory shifts. The separation of Irish Water from Ervia and subsequent restructuring of the latter and of Gas Networks Ireland, is to be facilitated by amendments to various Gas Acts through the Gas (Amendment) Bill.

A stand-alone aviation regulator is due to be formed from the merger of the Irish Aviation Authority with the Commission for Aviation Regulation¹⁵; a new commercial enterprise will be spun off from the ‘for-profit’ functions previously held by the former. The framework for airport charges in Ireland is also to be amended.

Road safety measures will be introduced through the Road Traffic (Miscellaneous Provisions) Bill, including the introduction of a Motor Third Party Liability Database and Master Licence Record. Technical amendments will be made to a number of Acts to enable the delivery of BusConnects, the programme responsible for the implementation of new bus corridors throughout Dublin.

A 2014 review by the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs proposed the establishment of a reconfigured raised bog Natural Heritage Area network. The Wildlife (Amendment) Bill proposes to give effect to the proposed reconfiguration and the system of compensation for those forced to discontinue the cutting of turf in future. A duty will be placed on public bodies to promote the conservation of biodiversity in affected areas.

The Aarhus Convention was ratified in Ireland in 2012, strengthening the public’s right to information on, and participation in, environmental matters run by public bodies. Following several public consultations, work is now underway on the Aarhus Convention Bill to update certain provisions and better implement key aspects of the Convention.

Also contributed by Peter Brennan