If the House agrees perhaps we could discuss amendments Nos. 1 and 3 together as I understand they form a composite proposal.
European Communities Bill, 1972: Committee Stage.
I move amendment No. 1:
In subsection (1), page 2, after line 43, to insert the following:
" `act' means any enactment, regulation, directive, decision or recommendation made or adopted by the institutions of the European Communities."
As will probably be fairly obvious to the House both these amendments and, indeed, all the amendments which stand in my name, are directed to the drafting of the Bill rather than to any principles that are enshrined in the legislation. For that reason I would hope that they might commend themselves to the Minister and that he would not consider himself committed entirely to the precise drafting of the Bill as it is before us. I can understand how he must consider himself committed to the principles which he has put forward in the Bill but perhaps he will be prepared to consider my amendments as attempts to improve the drafting of the Bill. I am very conscious of the importance of this piece of legislation and I think all Deputies will agree that it is quasi-constitutional in its stature. Certainly it will be a very important piece of legislation in the years ahead and will be scrutinised and dissected at the highest levels. Therefore, it is important that to the best of our capacity as legislators we should ensure that the legislation is clear, certain and positive.
That is the background against which I have tabled these amendments and I would hope that because of the importance of the Bill it would be as near perfect as we can make it. Perhaps it is the last piece of legislation at least for some time that the present Minister for Foreign Affairs will pilot through this House. For that reason, too, I would be very anxious that it be as near perfect as possible. I do not think we should look on the Community as something from which we are only to seek benefits. It is something to which we can also make a contribution. In the area of law making I think we are particularly well equipped to make a contribution to the Community as it evolves because we are in the unique position of being a common law country and at the same time having a written Constitution. Because of this we are perhaps more intellectually adapted to the Community system of law than our neighbour, and I would hope that, as the Community and its institutions evolve and develop, this is one area in which we can make a very important intellectual contribution. For that reason I would like if we would begin with as near a perfect piece of legislation in this Bill as we can possibly get. Amendments 1 and 3 deal with the definition of the word "act" in the Bill and I want to point out at the outset that I differentiate between "Act" with a capital "A" and "act" with a small "a", because, of course, "Act" with a capital "A" refers to the piece of legislation itself whereas the `act" with a small "a" is something completely different. It covers directives, regulations, decisions or recommendations of the European Community institutions.
I had some difficulty in looking at the Bill because of the way in which the word "act" or "acts" is used. Deputies will notice that section 1 (1), line 41, contains the words: "as supplemented or amended by treaties or other acts of which..." There is no mention there in line 41 of by whom those acts are made; whereas in section 2, line 12, where the Bill again speaks of "acts" it is quite specific by including the words "adopted by the institutions of those Communities". It seems to me that there is a difference between the two sections. In section 2 the Bill is quite clear that the acts must be the acts of the institutions of the Community, whereas in subsection (1) of section 1 there is no reference to the fact that the acts must be acts of the institutions of the Community.
Confronted with that apparent contradiction, at least, between these two sections, it seemed to me that the desirable thing to do was to put into the definition section, that is, subsection (1) of section 1 a clear definition of what we mean by "acts" throughout the Bill. As you see, my amendment seeks to define "act" as "any enactment, regulation, directive, decision or recommendation made or adopted by the institutions of the European Communities". I think that removes any doubts which may exist. Again, I emphasise that in any piece of legislation of this fundamental and quasi-constitutional importance it is essential that there be no doubt. If that definition is included in the definition section, then I think the Bill is considerably improved.
Amendment No. 3 is a necessary follow-up to amendment No. 1, because if I include in the definition of the word "act" the stipulation that these acts must be acts adopted by the institutions of the European Communities, then there is no need in section 2, line 12, for a repeat of the words "adopted by the institutions of those Communities". The two amendments, as you rightly point out, a Cheann Comhairle, hang together, and if we adopt the definition in the definition section, then it follows that section 2 would have to be changed accordingly.
I would make one final point, that is, that nowhere in the documentation attached to the Treaties is there any definition of "acts"; indeed, to a large extent there are very rare references to acts as such. It would be very convenient if we could say that "act" with a small "a", has the same meaning as it has in the Treaty of Rome or the Treaty of Accession or some corresponding document. There is certainly no reference in the main Treaty to "acts" as such. All in all, the adoption of these two amendments would help to make this piece of legislation much more positive and much more clearcut and I recommend them to the House.
I see the point of the Deputy's proposal. The word "act" does appear in two places and has a different meaning in section 2 from that in section 1 (1). Interpretation of this is a matter which may be of importance and we have taken both these wordings from the Act of Accession. If interpretation ever has to be made, it would have to be made by the European Court. Therefore, while it would be desirable to have it clarified, clarification in the way the Deputy suggests for our legislation could lead to conflict afterwards.
I accept that, but if that is so and if my amendments are not acceptable and, in fact, might give rise to a problem of interpretation later, the Minister might consider between now and Report Stage putting in here reference to the fact that "acts" in this Bill has the same meaning as it has in the Act annexed to the Treaty of Accession or something to that effect. I am not pressing it but perhaps it might be considered between now and Report Stage.
I shall have the draftsman look at it.
Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2.
I move amendment No. 2:
In page 3, line 12, before "acts" to insert "existing and future".
This is really a drafting amendment. It seems to me that if we just leave in line 12, section 2, the wording "acts adopted by the institutions" it could possibly be interpreted as referring only to acts—again I am using "acts" with a small "a"—which have already been adopted by the Community at the date of the passing of this piece of legislation. I do think it is open to that interpretation, particularly as the earlier part of section 2, which deals with the Treaties, the wording quite clearly restricts the operation of the section to treaties which have, in fact, come into operation or will come into operation by 1st January, 1973.
With that sort of headline, as it were, in the earlier part of the section it is, I think, very important to spell out precisely what we mean. It is clear, as everybody will agree, that by "acts adopted" we intend to refer to acts which have already been adopted or which will be adopted in the future. I should like the Minister also to confirm my view, if he can, that in section 2 we are only bringing into our domestic law the treaties as they will exist at the 1st day of January, 1973, and, if there are any new treaties, presumably it is the intention that these will be legislated for or put through the Oireachtas because of their importance as treaties in some other way. In section 2, however, we are dealing with acts adopted up to now or which will be adopted in the future. If I am right in that it would, I think, be desirable, and it should not cause any objection here, in the European Court, or anywhere else, if we just put in the words suggested to clarify the acts about which we are talking. There should be no objection to the inclusion of the words "existing and future acts" Accordingly, I recommend this amendment to the House.
Again, we have taken these words from the Act of Accession and that implies the inclusion of both existing and future acts and, therefore, adding in the words suggested would not add to the meaning. While I see the point of clarification, I think it is undesirable to depart from the wording of the Act of Accession because this will in time be interpreted by the European Court and there could, perhaps, be a conflict.
Surely, if they do not do any harm, and there is the possibiliy that they might make the situation clearer, then ex abundante cautelae, the Minister might be inclined to accept them. If the Act annexed to the Treaty of Accession should prove in any way ambiguous surely it can only help matters to make our law totally devoid of any ambiguity. There is no doubt that the use of the phrase “the acts adopted” could in certain circumstances be interpreted as meaning only acts which have been adopted at the passing of this piece of legislation.
Deputy Haughey has proposed something and the Minister has pointed out that interpretation will ultimately be made by the European Court on the terms of the Act of Accession. It occurs to me that a point in favour of Deputy Haughey's approach is that, when the court comes to interpret the Act of Accession, it will naturally look around for whatever interpretations are there and if we offer an interpretation in advance we will be making a contribution towards the interpretation we would wish. Therefore, although the court would not be bound by it, there could not be any conflict because ultimately the European Court will rule. There might be some point in putting in the interpretation in advance.
It might also, and it will, be ruled on by our courts. It is not just the European Court.
It strikes me there could be an advantage if the Bill, as drafted, contained the weakness that Deputy Haughey fears might be in it because there might be an occasion in the future when some act of the Institutions might not be to this country's advantage and, if that weakness was there, it might be to our advantage to escape through this particular loophole. However, if I put on my legal hat for a moment, I do not see that legal weakness there at all. You may have acts adopted in the future just as acts may have been adopted in the past or acts adopted now. They will have their own particular meaning in any particular tense. I am not impressed by the Minister's argument that we should not vary the words contained in the Act of Accession. There is certainly ambiguity here in relation to the earlier section. Deputy Haughey is quite right. The same point arises here. There is ambiguity in our legislation in relation to the earlier section. The Minister says we should not vary the phraseology because the Act of Accession uses it, but that was the phraseology in use in a Community document and quite clearly does not relate to the local bye-laws of any particular State. It is the language of the Community itself and our courts, if interpreting section 1, as it stands, could certainly say that the acts relates to something other than Community enactments. However, in relation to this particular amendment, I would say the fears Deputy Haughey has are not justified but, even if they were, I would consider it advantageous to leave that area of freedom for our lawyers to use in the future to our advantage if they thought it advisable to do so.
I could not subscribe to that very fallacious argument of Deputy Ryan. Do not forget this is domestic Irish legislation and it will also be open to interpretation by the Irish courts and it will be capable of being the subject of actions in the Irish courts. Therefore, there is a very heavy onus on us, both from the point of view of our own domestic law and from the point of view of our being good international citizens, to make our legislation as precise and as clear as possible and not to phrase it in such a way that we leave loopholes through which someone can escape at a future date.
Now that Deputy Ryan has come into the argument I want to make this point to him and also to the Minister. My worry arises not so much out of that one phrase "acts adopted" but because section 2 in the first few lines deals only with treaties which will be, have been and are in operation on 1st January, 1973, and not any future treaties. Section 2 does not deal with treaties which may be adopted or made in the future. To that extent, therefore, there is an implication in the section when it refers to "acts" that they are only acts which have been adopted by 1st January, 1973. That is my worry.
I am a little unclear about this. Am I right in thinking that as from 1st January, 1973, the treaties governing the European Communities and the acts adopted by the institutions of these Communities are the treaties governing it in 1973 and any acts adopted subsequent to——
It is meant to be acts before and after.
If it is meant to be before and after is "existing and future" necessary?
For complete clarification, yes. They cannot do any harm.
Several lawyers have spoken here. My authority is the people who draft these legal matters for the Government. They are quite satisfied with the wording even though some of us may think it is open to misunderstanding. The word "adopted" means as at 1st January and from that date onwards.
Before and after.
I am advised that it is sufficient, but if it makes the Deputy happier, I will accept it.
It will make me very happy.
I do not think it does any violence. As to the other, the word "act" appears in two meanings and this I would prefer to have left in the terms of the treaty, the act of accession, for interpretation, but I do not think that accepting this does any violence.
Question put and agreed to.
Amendment No. 3 not moved.
I move amendment no. 4:
In page 3, line 15, after "treaties" to add "and in case of conflict shall prevail over any other part of the domestic law now in force or hereafter to be enacted or to come into force."
Again this is a drafting amendment designed hopefully to make the situation clear. It is quite clear that section 2 is concerned with incorporating into our domestic law the treaties and acts of the Communities and the institutions of the Communities. Surely it is quite possible that at some stage we in this House might pass legislation, or indeed under existing legislation some order or regulation might be made, which would be in conflict with a directive or a regulation or an act of the Community and it is to avoid any such situation arising in future that I put forward the amendment. The Minister has spoken about the vast amount of legislation which has already accumulated and the amount we can expect to issue in the future. This legislation, these directives and regulations, are going to be very complex and complicated, so that it is quite possible that even if we are as wary and as watchful as we possibly can be, we could have a situation in which something which we would pass here as part of our domestic legal processes would conflict with some Community legislation. It is to try to make the section appear as clear and positive as possible that I put forward the amendment, making it quite clear that in any case where there would be any conflict between our domestic law and the European law, the European Community law would prevail. I understand that there is some discussion in Brussels in legal circles about this matter and that some countries, other member countries, are at least approaching the particular problem and considering what might be done about it. I recommend the amendment to the Minister purely on the basis of making this Bill as clear and as precise as possible.
The amendment uses a couple of words which are also contained in the original section upon which I would like some guidance. These are the words "domestic law". I think this is a legal concept which has not been defined in any statute. It is not in our constitutional law and I think it is a concept which is unknown to our whole legal system. I think we have a general understanding of what "domestic law" means. It means law which is applicable within our own jurisdiction or environment but it occurs to me that it is something which ought to be referred to in the definition section of the Bill, but if I am wrong in saying that it is not defined in our statute law, I would be very glad if the Minister would refer me to the authority.
Deputy Haughey's proposal, as I read it, is to tie the legislators here hand and foot so that, even if they consciously decide to pass a Bill which appears to be contrary to Community law, such law will not have effect. I do not think this a desirable thing. I feel that, even if it only means chancing our arm, if we find that something has been introduced with which we violently disagree, this Oireachtas Éireann should have the right to pass a law, even if it does appear to be in conflict, because the Community law may not always be right. Being one of the people who bitterly opposed entry into the EEC, I am now accepting that we must go in, but I do not see why we should deliberately tie ourselves hand and foot in going in, so that if we want to get out of a situation, we are unable to do so and even if we are allowed out, if the EEC decide that they will tolerate something, if we accept this amendment does it not mean that we cannot do something which may appear to be contrary to EEC law? I may be misunderstanding both the amendment and the section and I would like some guidance on it.
As the Minister pointed out very clearly earlier on, the decision about the European Community has been taken by the people by an overwhelming majority. There is no question of not accepting Community law. We have decided to accept it and this is the machinery by which we actuate the acceptance. I am not concerned with that but I am concerned that there might be ambiguity in future and I am anxious to make the law, whether it is Community law or domestic, precise and clearcut with no ambiguity, and with having a situation in which the courts, the citizens and the practitioners know what is the law and that if there is an apparent conflict between that law and the other, to have it clear which law prevails.
May I make a further comment on what Deputy Haughey has said? I understand that he wants to have the areas of black and white recognised as such but if there are grey areas where there may not be a clearcut decision and if it appears that some law which could be passed here would be in the interests of the Irish people, why should we insist on putting in a clause which will mean that we cannot get an advantage even if that advantage would otherwise be open to us? This is my reading of it.
That would not be involved. The Community law is going to prevail anyway and I want to spell that out clearly.
Is it not a fact that immediately after 1st January, 1973, Community law becomes domestic law as far as we are concerned?
In a limited area.
Am I right?
You are right.
I think it is important that we have some information which I certainly do not have about how this problem has been got over before, because it seems that as a result of this legislation we are going to bring about a unique situation in the legal history of this country in that we will have two bodies of law in effect at the same time and there will be no absolute certainty where one begins and the other ends. Even with Deputy Haughey's amendment, which does establish the primacy of one law over the other, we do not solve the further problem of deciding where that law stops in so far as its general appliability is concerned and where do you find yourself having to revert to the existing law which is domestic law? This to my mind is a case for introducing as far as possible Community regulations into the law of this country by means of specific implementing legislation in this country, because if you do that you will be able to spell out in the course of that legislation precisely what sections of existing or pre-existing Irish law are affected by the proposals contained in the Community legislation which is being implemented.
I can see great difficulty if we leave that matter subject to debate in the courts. It will be a great opportunity for lawyers to make big money debating whether a particular section is affected by a particular section of Community law. To avoid excessive legislation it is necessary that we should implement Community law by specific legislation within this country so as to nail this matter down and say precisely: "This section of this existing Irish statute is hereby revoked."
Why did Fine Gael not think of all this when the question was on?
I do not think the Deputy understands what I am talking about.
I do. The Deputy is very good at talking.
Of course, I learned that from the Deputy when I was attending his lectures. I only hope that I can keep to the point with greater facility than the Deputy does on occasions.
The Deputy is able to answer for himself.
Will the Bill do precisely what the Minister wants it to do?
No. This is, I think, where the difficulty is. The Deputy's proposal establishes that in the case of conflict EEC law will prevail over Irish law.
It has, already.
(Interruptions.)
I hope he will learn by talking.
That is what the Deputy always taught us.
The Deputy is a credit to me.
How then is he in Fine Gael?
I am sorry to labour this point but it does seem as if it has greatly been misunderstood. Deputy Haughey's amendment establishes the primacy of EEC law over Irish law. The problem I am trying to get at is deciding where EEC law is no longer applicable and where you have to revert to existing law. There are vast areas of Irish law that will not be affected at present or in the foreseeable future by EEC legislation. I think the problem is that it will be uncertain, when you introduce a particular item of Community legislation, how far that goes in affecting existing Irish legislation, whether it affects section 1 of a particular Act or sections 1 and 2 of that Act. A service would be given in reducing litigation if we could implement as far as possible EEC legislation by legislation here, which would state specifically that sections 1 and 2 of a particular Act are affected by this piece of EEC legislation.
Deputy Haughey's amendment does not deal with particular items of legislation; it lays down a general principle which will not help us in dealing with some piece of legislation, say, with regard to the grading of eggs. If we want to decide whether our existing Egg Marketing Act is affected as to sections 1, 2 and 3 or as to sections 1 and 2 Deputy's Haughey's amendment will not help. I am trying to make the point that, if we are altering the Egg Marketing Act by means of legislation, if the Community law is going to affect the Egg Marketing Act, we should affect this by means of legislation in this House specifying precisely whether it is sections 1 and 2 or sections 1, 2 and 3 that are involved. While that may entail greater labour in this House we shall reduce the amount of labour in the courts, which would cost individual litigants a great deal of money, by nailing down the precise area of applicability of Community law in relation to Irish law once and for all.
Could I get some information from the Minister in reference to this proposed amendment of Deputy Haughey which states:
...and in case of conflict shall prevail over any other part of the domestic law now in force or hereafter to be enacted or to come into force.
It is better to inquire now than later. In Britain abortion is absolutely legal at present. Assuming divorce and abortion laws were to become binding on the Community, I want to know how our domestic laws would stand. It is only right that at this stage, lest any conflict should arise—and Deputy Haughey's amendment envisages such a conflict of laws—this information should be sought. I am asking if, not this year but at some future date, there should be in member countries a law similar to that in Britain now in regard to abortion, which would be binding on other countries, are we committing ourselves to it.
I cite that as one instance. We do not advocate or legislate for divorce and we have no intention now or in the future of legalising abortion, but what would be the position if a law such as exists in Britain now were passed by the European Community? Would it be binding on us or would this Parliament have the right to put that law aside? Or would it be a law that could be considered, in county management terms, as a reserved function, a law which we would not adopt? Would the Minister clear up that point? Such a possibility may not arise but it is better to have it on record and I am raising the matter so that it will be on the records of the House in the event of such a possibility arising in the next three, five, ten or 15 years. Perhaps I shall not be here then but we should know how we stand in relation to laws which will have an effect on the economic, moral and social standards of this country, laws in regard to our culture and our national standards. I want to ensure that there will be no conflict. If laws are to be imposed on us which are foreign to our Irish traditions what authority will this House have to prevent the laws of Brussels becoming our domestic law?
The Foreign Minister has probably gone fully and closely into this during years of negotiation but, for record purposes, it is right that we should raise the matter. If the laws of the Community are to be on the same level as our domestic laws are we to adopt Community laws which will automatically become our domestic laws after 1st January, 1973? I have given the legalising of abortion as a typical example of a law that this country would not relish or stand for, that the Christian traditions of this country would not subscribe to. For that reason it is only right, for the records of the House, that we should hear here and now exactly what the Minister for Foreign Affairs has to say in relation to this matter.
It is also right, for the records of the House, that we should realise that the people of this country and this House continue to be sovereign, that we have the choice. There can be another referendum. Deputy Flanagan is confusing a lot of things. There is nothing in the Treaty of Rome about the issues that he is talking about.
I said "if".
Very good. The answer to the Deputy is that at any time there can be another referendum. At any time, this House can reject in toto on behalf of the people. That power is there. Your sovereignty is there and is untouched. That is the answer to the Deputy.
It is a lot of rubbish.
Let us be clear about it. The practical aspects are another matter.
That is not an answer to the point I raised.
It is.
I do not think there is any point in what the Deputy raised. I do not think what Deputy Flanagan fears in the area of abortion, divorce, contraception, will be imposed on him by the European Communities, however else it might happen. The area in which Community laws will be effective here and will prevail over our own laws is limited. It is economic, trading, commercial and related social. I do not envisage legislation in relation to the fears expressed by Deputy Flanagan arising at all. I do not think the marking of eggs, either, arises on this section. It may arise on an amendment later. Deputy Bruton made a very long statement about the marking of eggs.
I was only illustrating a point.
There is an amendment later which might make an area for this discussion. How do we find out what the law is? I think this will be dealt with in two ways. Deputy Flanagan, Deputy O'Donovan and Deputy Haughey said it and I will say it again, that Community law within the area covered by the treaties prevails, and that is that. What we put in this Bill does not change that. How do you get this tidy situation as Deputy Bruton sees it? One is interpretation by the courts and the other is what is intended to be done here and that is the tidying up operation of statute law which will be done by revision at regular intervals here. The fact is that because we have signed treaties in relation to the application of Community laws, Community law would take precedence over any domestic law made in conflict. As to whether it is necessary to write it into the legislation, I do not think so. There have been two individual cases in two parts of the present Community in which the courts made this decision. So, I have no doubt and I do not think any of the Deputies has any doubt about the fact of the law prevailing. So, the only thing I can say about Deputy Haughey's amendment is that it is not necessary. I mean, there is nothing wrong with it except that it is not necessary.
If it is not necessary then I suppose that in itself is a failing. We should not be enacting unnecessary legislation. I am not going to press the amendment, of course, but, with all due respect, I should like to suggest to the Minister that between now and Report Stage he would consider this a little further because I think it is important that this principle should be spelled out.
The Minister has said that it is so, that it is a fact that if there is a conflict between some of the laws we make here and Community law, the Community law will prevail. That is the only possible logical way we can approach this.
Quite right. Since you have landed us in it, that is the way it is.
The people decided.
That is the situation. That is the only possible logical way we can approach it. Otherwise we will have chaos and confusion created both in our domestic law and elsewhere.
It is a pity you did not read the Constitution before you consulted the people.
It is in the Constitution.
If the Minister, having looked at it again, is quite satisfied that this amendment of mine is unnecessary, that there is no doubt that the Community law will prevail in a case of conflict then I, of course, would leave the matter rest at that. But, I am not satisfied that that is the position and I believe that there are some authorities at least in Community legal circles who support me in what I suggest and that it is, perhaps, necessary to be quite specific in this section about the situation.
However, I will leave it at that and just ask the Minister, perhaps, to have a look at it and reconsider the situation between now and Report Stage. I withdraw the amendment.
What Article of the Constitution refers to domestic law? Perhaps the Minister would be good enough to guide me?
The word "domestic law appears in Article 29 paragraph 6:
No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.
The Deputy said the word "domestic law" was a legal concept without standing. It has the standing of the Constitution.
Amendment, by leave, withdrawn.
Question proposed, That section 2, as amended, stand part of the Bill.
I am very unhappy about section 2. I did not put down the amendment because it may be that my unhappiness is due to a misunderstanding on my part and I felt that if I could clarify the position on Committee Stage I could then see whether in my view, having heard the Minister, an amendment might be required on Report Stage.
It seems to me that sections 2 and 3 are trying to handle two things at once that are quite different in character and in so doing confuse the issue and may, in fact, be bad law. I am looking for guidance here. Let me put my case and be reassured if possible.
Section 2 talks about acts adopted by the institutions of those Communities. The word "acts" is not there defined. It goes on to say that these acts shall be binding on the State and shall be part of the domestic law thereof. That seems to me, in my ignorance, perhaps, to be a reference to a regulation of the Community, which is, of course binding on us and part of our domestic law. But it does not seem to me to be the description of a directive. A directive may be binding on the State in a sense of an international obligation. It is binding on the State as an international obligation but it is not part of the domestic law, at least, so I understand. A directive is something which requires us in good faith, as a member of the Community, having accepted the obligations of membership, to implement in our own domestic law the provisions of the directive by introducing a law—or it may be a statute or a regulation— which will achieve the objectives of the directive while, of course, doing this in a way consonant with our own particular interests, our own particular national characteristics, the particular nature of our laws and the particular needs of our people. A directive leaves a wide range of tolerance to us as to how we implement it. The fact that it is a directive, not a regulation, implies some tolerance is left in this respect; otherwise it would be a regulation. I cannot see that a directive which simply requires us to do certain things, imposing on us a binding obligation under the terms of our accession to the Treaty, can be part of the domestic law.
When I go on to section 3, if the Chair will permit me to refer to it briefly in order to explain my problem in relation to section 2, I discover there that a Minister of State may make regulations—this is domestic regulations—for enabling section 2 of the Act to have full effect but in so far as what is referred to in section 2 is a regulation of the Community, that is directly binding on us and is part of the domestic law and would not, as I understand, require any domestic legislation by statute or by regulation to implement it.
Section 3 seems to be referring to the making of regulations to implement directives of the Community. It then describes the directives as being in section 2 and refers you back to section 2 which talks in terms which are only appropriate to a regulation which is directly binding. It seems to me that there are two quite different things here. We need to draft these two sections together in such a way that we make it clear, in so far as it is necessary in this Bill to implement our obligations under the Treaty, that the Community regulations are directly binding and part of the domestic law of the State. It stops at that point.
Another section is required to say that in respect of directives and the other appropriate terms to describe acts which are akin to the directives, they are binding on the State, if that is the correct terminology—I am not 100 per cent certain of that—and that the Minister may make domestic regulations to implement those directives. They are two quite different issues and, as drafted at present, it seems to me that these two sections are defective in that the first reads as if it refers only to regulations of the Community whereas the second implies that section 2 is, in fact, talking about directives.
I will not press the argument any further at the moment because, if I have got the wrong end of the stick, the sooner I am told the shorter the debate will be. I shall therefore sit down and hope that the Minister can clarify the point, but I reserve the right to come back again if he does not clarify it to my satisfaction.
Deputy Haughey raised the problem in regard to establishing whether there was a primacy of Community law over domestic law. I think I could help him by quoting a case decided by the European Court which deals specifically with the problem he raised. The case in question is the case of Costa versus ENEL, case 26/62. It states:
The reception, within the laws of each Member State, of provisions having a Community source, and more particularly of the terms and of the spirit of the Treaty, has as a corollary the impossibility, for the Member States, to give preference to a unilateral and subsequent measure against a legal order accepted by them on a basis of reciprocity.
I think that clearly establishes the primacy which Deputy Haughey sought to establish in his amendment.
I have no doubt that when we get to the European level the European Court will decide that Community law prevails. But this is a piece of legislation which will also be interpreted by a district justice in Ireland. It was to put his mind at rest that I wanted to make the amendment. It was with our domestic situation that I was primarily concerned so that a district justice, or a High Court judge, or a Circuit Court judge, in this country would be under no doubt as to which law would prevail.
I know the Deputy does not intend to knock the district justices but is it not only fair to say that the European Court has not only given wrong decisions but has had its decisions ignored? Deputy FitzGerald looks surprised.
Could the Deputy indicate where they have been ignored? I would be interested to hear that.
Section 2 provides:
From the 1st day of January, 1973, the treaties governing the European Communities and the acts adopted by the institutions of those Communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties.
That conveys clearly to me that all the directives, decisions and laws of the Community to date will be part of our domestic law from 1st January, 1973. Must we not admit, and must not the Minister for Foreign Affairs subscribe to the idea, that our people are not familiar with all the laws and regulations, directives and decisions that have been decided. Members of this House are not familiar with them. Members of this House never saw them, never read them, never studied them, and do not know what is in store.
Dr. Mansholt said that the EEC is a monster with many heads and that it is very difficult to explain clearly to people what it is intended to achieve. The public have read this statement by a responsible leading figure in the EEC. When you hear such a distinguished personality as Dr. Mansholt making a statement of that kind you have not very much confidence in the laws of the Community to date which will become our domestic laws on next New Year's Day. I have grave doubts when I read a statement like that from a person who was one of the founding members of the Community.
Can the Minister for Foreign Affairs tell us what Dr. Mansholt does not know? Does he know more than Dr. Mansholt about this matter? If he does, he could now enlighten the House. Does he know what it is intended to achieve? Dr. Mansholt said he does not. Maybe our Minister possesses a higher degree of intellect than the distinguished Dr. Mansholt whose opinions on the EEC have differed greatly in recent months.
We are not concerned with discussing the EEC now.
We are discussing the laws.
Not the EEC.
This section tells me that the treaties governing the European Communities and the acts adopted by the institutions of those communities shall be binding on the State. I want to warn the State before they are binding. They will be binding on the State after the passage of this Bill. As soon as the chimes of St. Patrick's Cathedral ring out on New Year's Eve these Community laws will be our domestic laws. Dr. Mansholt was talking about these laws. We must assume he knew what he was talking about because he was presented to this country as the great, "I am" in relation to the EEC prior to 10th May this year. He was the great, "I am", the great beginning, the great end and the great no end.
He was led around like a prize bull.
He was led around like a prize bull after winning the prize. He now tells the people of Europe that the EEC is a monster with two heads and he does not know what it is all about.
With many heads.
Perhaps the Minister can explain——
The Deputy might try to explain it himself.
Perhaps the Minister is confused by Dr. Mansholt's opinion of the EEC and its laws. If the Foreign Minister differs from Dr. Mansholt this is the occasion for him to tell the House that Dr. Mansholt is wrong. May we presume, if Dr. Mansholt is wrong now that he was wrong in his statements here when he was brought around by the Minister and his colleagues? I am satisfied that the laws of the European Communities will be enforced on our people by the free will of the vast majority; we cannot deny that; the people accepted it. We must admit they have bought a pig in a bag and even the Foreign Minister himself does not know all the legal implications of the various laws, regulations, decisions and commitments in which we shall be involved after New Year's Day.
For that reason I want what I have said to go on record with particular reference to the admission of Dr. Mansholt in regard to the whole EEC set-up.
When the equivalent of the legislation we are now discussing was going through the German Bundestag in 1957 I understand it was proposed by the Bundestag that the German Government would have the responsibility of communicating to the Houses of the Bundestag projected EEC decisions so that the opinion of the Bundestag could be elicited on them prior to a position being adopted by the Government in the Council of Ministers. I understand that this section refers to the acts adopted by the institutions of the Communities and we are seeking to accept these acts by means of this section into our domestic law. It is relevant in this context to discuss the procedure whereby these acts become Community law and thereby come within the ambit of this section. For this reason I drew the attention of the House to the practice in the German Bundestag which involved the German Parliament in the process of deciding on Community law through its representatives in the Council of Ministers.
I hope to be in a position to introduce on Report Stage an amendment to this section to require the Government to adopt a similar procedure to that adopted in the German Bundestag and accept it into their Act ratifying the Treaty. If such a proposal is adopted, that projected EEC decisions should be discussed by the Irish Parliament in advance of a decision being taken by the Community, the most appropriate method of discussing these would be by means of a committee of the House. That is a matter with which I propose to deal later on another amendment. I am just putting that proposal into context in regard to what I am saying on this section.
The Deputy is not.
Why did the Minister not reply to my point?
May I say to Deputy Bruton that we have already discussed how to bring the Dáil into consideration of legislation in the process of formation in the European Commission or Council and I think we have agreed that there will be a committee to do this and that the House itself will be brought into the functioning of the committee in some form. We must do that. I do not envisage it being done as an amendment and I am surprised that the Deputy has an amendment down while the leader of his party has a motion down.
Two ways of achieving the same result.
Could you not come to some agreement within the party as to what you want?
The reason we did this was that we expected the Government would try every trick available to them to obstruct the efforts of the Opposition to do something about making——
I would do anything to get the Deputies opposite to deal solidly with work.
You have been doing nothing since 10th May. You have been doing nothing over the last six months except promising to do something.
We have done everything in our power and as has been already demonstrated you have not gone near what we made available in the Library. It is quite essential that Deputies should read what is put in the Library and if we have a committee it is quite essential that they work on it. I do not accept this "blame the Government" attitude for everything. It went on all through the negotiations. Every week we circulated material and we had Question Time and still they kept on repeating that they were not getting information. That is not good enough; it will not do in the Community.
(Interruptions.)
In answer to Deputy FitzGerald, section 2 says:
...acts adopted by the institutions of those Communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties.
The conditions laid down in the treaties are what the Deputy has so often repeated here, regulations are directly binding; directives and decisions implemented by any method adopted by the individual countries. That is the meaning of it; it covers the ways of bringing Community legislation into effect in our domestic law. The Treaty of Rome envisages wide horizons which the men who founded the original Community sought to attain, closer co-operation between the countries involved, unity, the betterment of their peoples. The most obvious achievement to date is the common agricultural policy which organises the markets and which ensures prices. The Deputy will be aware that a great deal of the legislation which people say is not available to them is already obsolete. When we speak of this secondary legislation a big proportion of it consists of administrative regulations, and so on, regarding prices. It is all the time changing and that is why there is such a mass of it.
Are the English translations of the papers the Minister refers to as being in the Library, in the Library, for this year, from 1st January?
No. There are English translations up to the end of November, 1971, I think.
And the remainder of them are still in French and unfortunately we have not a working knowledge of French.
They are being produced but we must get back to the fact that no matter what language they are in there is nothing we can do to change them. They are already made and by agreeing to join the Community or by wanting to join it we accept them.
It would help us to understand what we accept.
No, I do not think so. Many of these matters are obsolete. There are changes from day to day. Ninety per cent of them relate to the common agricultural policy.
(Interruptions.)
I do not think it is possible to get this House informed while people will not be informed. They do not want to listen or read. They deny we are getting information out to them. All they want is to sit there making trite, superficial remarks. It is a bad use of Parliament.
(Interruptions.)
May I make a point? This relates to the word "on"—"shall be binding on the State". Some of these acts have nothing to do with the State. Some of these acts and directives have to do with private individuals. I think the word should be "in"—"shall be binding in the State and shall be part of the domestic law thereof". I think the wrong word is in the section. Certain decisions and so on will be binding on the State but many of them will have nothing to do with the State.
"...and shall be part of the domestic law."
I think that Deputy O'Donovan is right. There are decisions made in regard to cartel matters by the institutions which affect individuals and not the State and which are not part of the domestic law but are decisions binding the particular individual.
They become part of domestic law.
I submit that a decision in regard to a cartel matter is not part of the domestic law but is binding on the individual. It is part of the Treaty of Accession and, therefore, incorporated into our domestic law by the section.
It relates to regulations. The Minister made that clear.
Does Deputy Haughey understand the point I made?
Yes.
It is in the Act of Accession.
The Minister's interpretation is valid and I think Deputy O'Donovan's point is met by the phraseology "and shall be part of the domestic law thereof". Thus it will be part of our domestic law, binding on individuals, courts, Government and so on.
If the State takes on an obligation it is binding on the State but that is not what this is about.
"Acts" adopted by the institutions become part of our domestic law.
We are still at loggerheads.
Only some of them become part of our domestic law. The Minister made that clear. In his reply on the Second Stage the Minister told us that a regulation of the European Community applies to the whole Community. It is not for decision by the national parliaments whether to apply it or not. The Minister told us that the directives of the Community are to be applied to member states by whatever method the national governments or parliaments choose to adopt. He told us it was these directives which are concerned in the ministerial regulations which will be made under the Bill. The Minister has told us that the ministerial regulations to be made under section 3 are only directives, not regulations. He has excluded regulations. He has told us they are not for decision by the national parliaments whether to apply them or not, and he has stated that the directives of the Community are to be applied by member states by whatever methods the national governments or parliaments choose to adopt. What we are concerned with here are the ministerial regulations which will be made under the Bill. It appears to me that Deputy O'Donovan's point is correct and the point I have made has more merit than I thought. The Minister's reply is inadequate. With regard to the words "shall be binding on the State and shall be part of the domestic law", I do not think Deputy Haughey's intervention solves Deputy O'Donovan's problem. A decision of the Commission on a cartel matter is not binding on the State, it is binding on an individual.
It is an "act" of an institution of the Community.
A decision of the Community which affects the position of an Irish company in relation to a company abroad is binding on that company but I submit it is not binding on the State which is not a party to that transaction.
It will be part of the domestic law of the State.
I doubt if it is. I should like the Minister to justify that remark.
I will examine the matter from the point of view of "in the State".
The word "and" between the two clauses invalidates Deputy Haughey's point. It says that these acts are both binding on the State and part of domestic law.
The words are "and shall be part of the domestic law".
All acts shall be both of these things, not just one or the other. I think Deputy O'Donovan is right in suggesting that, whatever about a decision in a cartel matter being part of domestic law, it is not binding on the State. As all acts are stated to be covered by both of these points because of the word "and", Deputy O'Donovan's point is well taken. The Minister has also suggested that the words "under the conditions laid down in those treaties" have the effect of reversing what goes before in certain instances.
The Deputy should speak for himself. I did not use the word "reverse".
I did not say the Minister used the word but I am submitting that is the effect of the Minister's words.
The Deputy should make it clear he is not quoting from my speech.
I hope I made that clear. In emphasising those words, the Minister seemed to be suggesting they had the effect of invalidating what went before in certain cases. If I understood him correctly—perhaps he will correct me if I am wrong—when the section states "shall be binding on the State and shall be part of the domestic law thereof" the words "under the conditions laid down in those treaties" is taken to mean that if they are directives they are not part of domestic law——
The words are "shall be binding on the State and shall be part of the domestic law". They have to be made part of the domestic law.
That is a different thing. The Minister is conceding an important point. What is said here is that these acts shall be binding on the State and shall be part of the domestic law, not that the intent and effect of these directives shall be introduced into domestic law by domestic legislation. As it came across to me, the Minister's defence of the phraseology in section 2 combined with section 3 seemed to be that, although a directive is not part of domestic law, its failure to be part of domestic law is covered by the phrase "under the conditions laid down in those treaties". Acts are part of the domestic law only under conditions laid down in those treaties and if the treaty says the directive is not part of the domestic law it is not part of it. I do not think one can read that effect into the words "under the conditions laid down in those treaties".
When one says something shall be part of domestic law under the conditions laid down in those treaties, one is saying that the method by which it applies is laid down in the treaty but one is not saying it is part of the domestic law. The "conditions laid down in those treaties" refers to the method by which it becomes part of domestic law. It does not permit of an interpretation that certain things are not part of domestic law because the treaty says so. To import to the words "under the conditions laid down" the power to reverse what has gone before and to invalidate it is to go beyond what the words are capable of doing. I submit that here the drafting is defective. If I have understood correctly the Minister's defence and his attempt to suggest that section 2 at present could relate to a directive, his defence is a bad one. We need to redraft section 2 in order to distinguish clearly between regulations which are binding on the State and part of domestic law and directives which are perhaps binding on the State——
Section 3 starts by saying that a Minister of State may make regulations for enabling section 2 to have full effect.
Section 3 implies that what are referred to in section 2 are directives, not regulations. If they were regulations section 3 would be irrelevant. The Minister has told the House it is not for decision by any of the national parliaments whether to apply a regulation.
I would ask the Deputy to go home and reflect on this matter because one could keep talking for ever on this. It is my opinion that the matter is adequately covered.
I could reflect on the matter but the Minister could at least listen to what I am saying and consider whether I have made a point.
Deputy FitzGerald is quite right.
Debate in the House would be more constructive if a point were answered rather than a clever remark made about going home to reflect on the matter. Either the Minister has an explanation——
I gave an adequate explanation but the Deputy will not accept it. I cannot allow him to be advocate and judge.
I shall give the Minister the opportunity in a moment to give his explanation. The only answer he has given so far is not a direct reply; rather it is an implied one which seems to be invalid. I do not think directives can be brought within the compass of section 2 by saying that because of the words under the conditions laid down in those treaties a directive which is not part of domestic law can come under section 2.
I think I can see why section 2 is drafted in this way. I think what lay behind the drafting was a desire not to distinguish in our domestic legislation between the different types of Community legislation. I can see the draftsman being concerned with the question of whether he should talk about directives, regulations and decisions and lay down a different procedure for each. I can understand his fear that this may introduce into the legislation of this House complicated terminology; perhaps it is a question of finding a portmanteau phrase, a way of lumping in directives and regulations into one section which will be so brilliantly devised that it manages to do the impossible—to combine two incompatible things—and to use a form of words which simultaneously covers things that are part of domestic law——
What are these incompatible things?
Regulations which are part of the domestic law and which are not for decision by any of the national parliaments whether to apply them and directives which we have to implement by our own legislation in the form which suits us. These directives are not part of the domestic law of the State.
What is the form of a directive? Let us go back to our source.
The form of a directive is an act of the community.
It is an act of the community. In what form?
"An act of the community" is the phrase used here. I am not very happy with it as a portmanteau definition, but let us accept it for the sake of argument. It is an act of the community which imposes an obligation on member governments to introduce legislation and on the parliament, to legislate in such a way that the import and purport of that directive find their place in the domestic law of the State through domestic legislation but leaving it to the State to devise the framework of that and to vary all kinds of surrounding aspects of it as long as the clear intent of the directive is implemented.
Is it not analogous to our passing an Act here and conferring powers on the Minister to make regulations under the Act? Is it not analogous to that process?
I submit that it is not because——
Is it or is it not analogous to that process?
It is not analogous, because——
You accept the word "Act". Is it not analogous to that process?
I submit that it is not analogous.
I do not want to interrupt but I am suggesting a line of thought to the Deputy. It would be a good thing to look at the source to decide whether a directive is legislation or not, and follow it through.
This word "acts" as used in section 2 is quite clearly intended to cover regulations, directives, recommendations and decisions. It is taken from the Act which is annexed to the Treaty of Accession, Article 9, which states:
...in order to facilitate the adjustment of the new Member States to the rules in force within the Communities the application of the original Treaties and acts adopted by the institutions...
It is quite clear that the draftsman took that phrase there in Article 9 of the Act annexed to the Treaty of Accession and he used the same wording here deliberately because he wishes to be in accord with the Treaty and the Act.
That is the whole problem. It arises because the draftsman decided not to distinguish between these different forms of Act in the EEC which are different in this country—some are part of our domestic law by virtue of the EEC decision and some are not—and put the two of them into one section where he treats them as if they were both part of the domestic law, which in fact, directives are not nor are recommendations, and I do not think that decisions are either though there might be some cases in which they are. I am speaking in the terminology of the EEC. I know the words have different meanings in the ECSC Treaty, but I do not want to get involved in that. I am surprised at Deputy de Valera, but he is disappearing from the House now.
I am not.
I do not think there could be any analogy between a law passed in this House and a regulation made under that law, and a law passed by a different legislative authority outside this State, and something done here as part of our domestic law. There is no such concept in Ireland as regulations being something called domestic law or having some particular limited application in County Cork, for instance.
They might.
Statutes and regulations made under them are part of the domestic law of this State. We are talking about legislation made outside this State, part of which is to become part of our domestic law and part which is not, but is to impose on us an obligation to introduce something along these lines into our domestic law. I submit that the Minister should reconsider the wording of section 2 and that his implied defence that "under the conditions laid down in those treaties" can have the meaning that because a directive or a recommendation is part of domestic law the words immediately preceding it have no force. That as a method of interpretation is quite inadequate. What should be done here is to distinguish between regulations and directives, because they are so totally different in character that one will get very confused by bad legislation which is dangerously ambiguous and obscure and legislation will be muddled as is done in this section and in section 3 in relation to this section.
Perhaps we should have taken "acts" out and put in "things".
"Things" that go bump in the night.
Would the Minister like to answer the point I have made?
One could argue about any point. It is like what we did as students when we picked out something and found all sorts of meanings in it. What section 2 aims to do is what the Treaty of Accession aims to do and that is to bring certain acts of the Community into legislative force here. We recognise that there are two kinds of regulations. Regulations directly binding will need in some instances ancillary legislation to bring them in. Some directives have direct application. There are some regulations which need ancillary legislation, but this is what satisfied the draftsman in relation to the Treaty of Accession as implementing the decision of the public to join the Community. What we are doing is taking on the responsibilities of implementing legislation in the area covered by the treaties in our own State.
Suppose a directive was adopted by the EEC and a time limit of one year given for the implementation by Ireland and the other members of the EEC. If Ireland, for one reason or another, did not introduce the necessary implementing legislation and at the end of that year, or maybe the following year, a case came up in regard to a particular matter covered by the directive, we would have the problem of deciding here whether that directive is binding or not. This section says that acts adopted by the institutions shall be binding. It would appear that the Irish courts would be entitled to interpret the directive even though that directive had never been implemented here and even though that directive was only framed with a view to its being implemented by domestic legislation and was not framed as something which should be directly applicable. It seems to me this difficulty in interpretation would arise.
It would apply in a case where the Government decided not to implement. Is that what the Deputy means?
Yes.
Does the Deputy think there would be a Government which would decide that they would not implement it?
It happens frequently enough in the Community.
We must nail this down. It might happen that a particular directive was not satisfactory from the point of view of the Government.
Does the Deputy think that there is anything we can do in this Dáil at this time to deal with a situation where a government decide not to implement a regulation?
We can decide that in this situation, which is not, perhaps, immediately likely but is possible, in the future, that if tensions were to arise between the member states and if Ireland found itself in a position where it did not want to implement a particular directive which had been agreed the Irish courts would be asked to interpret a matter covered by this directive which had not been implemented as it was supposed to be.
What court would ultimately decide the question the Deputy is raising?
The European court.
The European court would be the final court.
The problem here is that these directives are drafted in a certain way. They are drafted with a mind to their being subsequently implemented by domestic legislation.
What is their form?
They are directives.
Some provisions and some directives are directly applicable.
Certainly not. It may be necessary to put down amendments on Report Stage to meet this point. I interpreted what the Minister said at an earlier stage as meaning that the words "as laid down in the conditions under these treaties" can have the effect of reversing the sense of what goes before —"shall be part of the domestic law", and that he is standing on that principle of interpretation. I want to know whether I am right or wrong in understanding that to be the Minister's case? I am entitled to know the ground on which the Minister defends this and I do not want to have implied something which is not his feeling. I want to be clear that that is the ground on which he is defending it. Is that the case? Is the Minister's case that the words "under the conditions laid down in those treaties" have the effect, in relation to a directive, of invalidating the words "shall be part of the domestic law thereof" immediately preceding them?
Shall be part of the domestic law, under the conditions laid down in the treaties.
Is the Minister saying that that means that if something is a directive, that because the conditions laid down in the treaties do not require that directive to be directly binding, therefore it is not part of the domestic law?
It shall be binding on the State and it will be part of the domestic law under the conditions laid down in the treaties, whether by direct application or by implementation.
That is where the Minister is going completely wrong. What we are talking about here is that we are passing a law saying that something shall, by reason of its existence, be part of the domestic law. We are not saying that it is something that at some appropriate stage may become part of the domestic law by some appropriate legislative action and the Minister must not use such loose terminology in an interpretation here. Is it his case that the words "under the conditions laid down in those treaties" can have the effect of invalidating what goes before and making it null, the words "shall be part of the domestic law thereof", if it is a directive?
No.
If the Minister's answer is no—he says that section 2 is intended to cover directives; that is clear from section 3 then what he is saying is that all directives are part of our domestic law by virtue of being made.
Get at it this way, Deputy. There is a great temptation to do everybody's job, including the draftsman's.
We are enacting legislation, not the draftsman.
We tell a draftsman to draft an article which makes it possible for us to take on responsibilities which we have accepted in the Accession Act to the Treaty. This responsibility means taking the acts of the Community as binding on this State and they will be binding on this State either directly or by how we apply the other conditions laid down. The draftsman drafted it in this form which quite satisfies me and the Government that it covers this. That is a general provision. The next section makes provision for regulations—as Deputy de Valera pointed out this is not new—to implement the law. The general section makes it binding on the State to bring into our domestic law under the conditions laid down in the Treaty and the conditions are either direct for a regulation or by our own regulations which come in section 3. It is as clear to me as it could possibly be.
It does not require the State——
Other Deputies wish to contribute to this as well.
May I make a contribution which I think may be of assistance? Deputy FitzGerald and his colleagues are concerned about directives and, rightly, they are concerned about the fact that directives may not be immediately applicable in a member state. They may be but they may not be. They are a very flexible sort of thing. In the case where they are not immediately applicable they are directives to the member state to do something or conduct itself in a certain way. In so far as they are directives of that sort then the State, by virtue of this section, binds itself to put them into effect ultimately as directives.
That is it.
Section 2 does two simple things in the Minister's interpretation. I would have a little refinement on his interpretation if I had my way but in so far as the Minister's interpretation is correct it is absolutely clear. In so far as they are treaties they are binding on the State; in so far as they are directives or regulations or whatever, they may be binding on the State by the phraseology or they may be binding on the individuals inside the State by becoming part of our domestic law. It could not be clearer.
What Deputy Haughey has said appears to be logical enough except——
That it is wrong.
——is it not true that if what Deputy Haughey says is correct when we voted to go into the EEC — by "we" I mean the majority of the people—did not we agree to accept those things? If that is so, what is the necessity to pass them as legislation in this House? We have to accept them anyway.
We can interpret directives in our own way.
You can interpret them in the way you are told to interpret them.
No, you are given freedom of action.
One must ask what is a directive. I asked Deputy FitzGerald that and he said it was an act. The essential thing to grasp is that although you call it a directive, it is essentially legislation. Does the Deputy accept that a directive is legislation by the Community? A directive is not merely a pious request.
We have to define legislation.
It is not a pious request.
It is a binding request.
It is an act; it is Community legislation. The analogy that I draw here is that we frequently pass an Act of Parliament here in our own way. We empower, and I think there are instances where we have directed, a Minister to make certain regulations. Incidentally, these regulations could be only for Cork, as local as that. The analogy is there. From a legal point of view I would prefer to see an omnibus capture of all Community legislation because what you are dealing with is an act. A directive is an act that is binding on you in all phases. It merely needs the subsequent detailed development by what is called regulation here. I cannot see what the difficulty is. Is a directive an act?
It is an act but it is not part of the domestic law of any State. It imposes an international obligation by virtue of a treaty to take certain action conforming to the content of the directive but otherwise subject to the particular needs of the particular country.
Is it not part of the domestic law as far as it goes?
No, it is not.
I think the Deputy is wrong. Deputy O'Donovan's questioning of the word "on" may have led him into this.
I was in it already, I am afraid.
As I read it, and this is not a matter of drafting, our wish to make laws is interpreted by the draftsman properly, it is:
From the 1st day of January, 1973, the treaties governing the European Communities and the acts adopted by the institutions of those Communities shall be binding on the State——
The first misleading idea was "in" the State. These things are binding on the State. It goes on:
—and shall be part of the domestic law thereof under the conditions laid down in those treaties.
If you put in the words "and shall be made part"—but it would be wrong— that may make it clearer to the Deputy, but the draftsman is right. It shall be part of the domestic law. The first binding is on the State. The thing shall be part of the domestic law under the conditions laid down in the treaties and the conditions are, broadly, regulations directly applying, directives implemented by local legislation. It is quite clear to me.
The Minister has given the game away a little because he has suggested that the word "may" might be inserted.
I do not think it should be inserted.
Either it is in or it is not in.
It should not be there. I used it to explain to the Deputy
May I make my own speech at this point?
The Deputy is making one for me.
The Minister mentioned the word "may". There are two ways of doing this. You can say that something shall be part of the domestic law, which has a legal meaning, and I shall be surprised if the Minister's legal advisers suggest to the contrary, which means that by virtue of this section of this Act and the regulation being made by the Community, by virtue of the composite effect of those two things, once the regulation is made it is instantly part of the domestic law of this State.
Under conditions laid down in the treaties. Not the first sentence but the last sentence.
If we are talking of a regulation which under the conditions laid down under the treaties is one which purports to be and is a regulation directly binding on a member state and directly applicable and part of the domestic law by virtue of being made. We accept by virtue of this section that it is so part of the domestic law. Then, by virtue of that regulation being made, it becomes instanter part of our domestic law. The meaning of these words “in law” surely is that it shall be part of the domestic law by virtue of being made, if it is made under the conditions laid down in the treaty for making a regulation which is binding and becomes part of the domestic law.
The alternative situation is where there is a directive which requires us to do something. It would be legitimate, though slightly strange, if we were, in relation to regulations and directives, to say "shall be binding on the State and shall be made part of the domestic law". We can say that if we like, but that is quite a different thing. You either have the word "made" inserted or you do not. If it is not in, then it only refers to a regulation which is part of the domestic law by virtue of being made by the Community. If you put the word "made" then it cannot apply to such a regulation because it is an obligation on us to do something and it then refers to a directive.
The attempt to combine the two in one must of its nature fail. The Minister put forward a possible defence and seemed to me one which he might attempt to sustain—although I could not see the validity of it, I would like to hear him developing it—that the words under the conditions laid down in those treaties in some way have the effect of invalidating what goes before if what goes before is irrelevant under the conditions laid down in the treaties for a directive.
The Minister then denied that that was his intent and said he did not rely on that implication I had understood to be there. The Minister is in the position now that there is no way —if he is not pressing the point about the concluding words I thought he was making—in which he can sustain and stand over the section in its present form.
This is a grossly dishonest approach. I would like to explain it. The Deputy is quoting me and saying I am not now relying on something. I am relying totally.
You said "no". Deputy Haughey suggested an alternative interpretation.
The Deputy is quite dishonest in this. He is changing this for some reason that is not obvious. He could not be as obscure as he seems to me. I will ask Deputies to read the matter for themselves, but it is quite clear to me that, as from the 1st January, the treaties and the Acts adopted by the institutions of the Communities shall be binding on the State. That is quite clear. The Deputy wants to make it "in the State". The law is that it shall be binding on the State and shall be part of the domestic law of the State under the conditions laid down in the treaties. The conditions laid down in the treaties are automatically part of the law or by regulation. We provide in the next section for the regulation.
I submit that "shall be part of the domestic law" cannot have that dual meaning—that, in law, when you say in an Act of this kind that something shall be part of the domestic law and immediately following that say "shall be binding on the State" you are making it, by virtue of what you say here and the making of the regulation, automatically binding, instantly, from the point of time the regulation is made. You cannot give it a dual meaning by saying that in a different case, where it is not part of the domestic law, by virtue of being made it shall be made part of the domestic law. You cannot use the words "shall be part of the domestic law" in those two totally different senses and I do not think any court of law would uphold that.
This provision is binding on the State.
There are two legs to the section.
It shall be binding on the State and shall be part of the domestic law, not "or". It is "and".
The Deputy leaves out the last words all the time. They are important words.
I referred to them. The Minister went back on his implication there.
The Deputy has us all dazzled as well as himself.
Could I ask the Deputy a question?
Yes.
Supposing there is a directive, supposing the Government failed to implement it and supposing the question came up in a court, would that directive be interpreted by the European Court as binding in its spirit and in its intent? This is a crucial question.
No. It is a crucial question and I was bothered by the interpretation before. The answer to that is "no".
May I say something?
Would the Deputy please let me finish? Deputy de Valera asked me a question and I am trying to answer it. I can if I am let.
I think this may help the Deputy's difficulty over the use of the word "and". This section also covers the treaties and it says "these treaties shall be binding on the State and shall be part of our domestic law". Therefore, the treaties come under both parts of the section. I think the Deputy was trying to make the point that something cannot be binding on the State and part of our domestic law at the same time. The treaties are and any other "act" may be.
I was saying that the word "and" there requires that anything described as an act shall be both, by virtue of its being made. My point is that if it is a directive it would not be part of the domestic law by virtue of being made. Deputy de Valera asked me whether a directive which was not implemented in domestic legislation here by the Government would be interpreted by our courts or by the European Courts as being law. The answer to that, I am quite clear, is "no". The directive simply imposes on us a binding obligation. If we fail to implement that we are in default of our obligation under the treaty.
It is this Act.
It depends on whether the wording is adequate or not.
I do not completely accept the Deputy's answer.
May I just finish. I was never so interrupted in my life in this House. We are in default of our obligation and that raises the question of our relationship with the other States. They could raise the question with us at that stage of whether we are serious about the treaties, whether we are going to accept our obligation or whether we are not, and political action could follow. If the directive imposes an obligation it is not itself part of our law and no court would so interpret it.
I doubt if the Deputy is right. However, I will follow it up.
I want to pose a problem which is relevant to this matter. There is a directive which has been agreed by the Community in regard to farm modernisation and it states that certain aids shall be made available towards the keeping of farm accounts. This directive says also that the Government shall be free to determine whether or not this shall be applicable in different ways in different regions within the country.
Suppose the Government never adopt any implementing legislation to put this directive into effect and, after the time limit for its implementation has expired, a farmer comes along and says that he wants to get this aid for farm accounts, the courts here will turn him down because there is no Irish legislation under which he can get it. He can go to the European Court, as Deputy de Valera says, and they say that perhaps he is entitled to it but there is a provision in the directive that the Government cannot implement this within certain regions within the country.
There is a settled case on that from Italy.
I think there is a regulation. I would like clarification on that.
Look at the law.
There is a definite conflict because the European Court does not know, if the Irish Government have made implementing regulations, whether they would have included this particular region in the scope of the directive.
Progress reported; Committee to sit again.