For the time being I will confine my remarks to the amendment standing in the names of Deputy Cosgrave and myself which seeks to put brakes on the power which the present section can give to Ministers. We seek to ensure that Ministers will not, having been give a blanket power, have power to impose or to increase taxation, to administer justice, to declare acts to be infringements of the law which were not so at the date of their commission, to make any provision taking effect from a date earlier than that of the making of the instrument containing the provision, to create any new criminal offence, or to confer any power to limit the personal rights guaranteed by our Constitution and the European Convention of Human Rights and Fundamental Freedoms.
It would be a grievous error to give to the Minister power to create any new criminal offence or to give him power—this is the proposal in the Bill —to breach personal rights guaranteed by our Constitution. It will not be good enough for the Minister to answer that it is unlikely a Minister would abuse the powers in such a way as to commit breaches of these constitutional rights or the European conventions; the Dáil today is being asked to give unlimited powers to Ministers to make orders over a field of human activity wider than anything the House itself has control over.
At present this House and the other House are subject to the control and the supervision of our own courts of justice and if Oireachtas Éireann exceed the powers conferred on them by the Constitution they can be tripped up in their tracks by a decision in the courts that the action of Parliament is ultra vires the Constitution, is wrong and cannot be proceeded with. But the amendment of the Constitution carried by our people on 10th May last is so extensive, when coupled with the unlimited powers the Minister seeks in this Bill, that there could be many deeds done which would be breaches of our own Constitution were it not for last May's constitutional amendment and the immense powers this Bill proposes to confer.
It will be agreed that everything is not black and white here or in the European Communities, that there are bound to be many areas of grey uncertainty, and unless we protect our people in the manner we suggest in the amendment, there is a possibility that serious injustice and harm could be done by various proposals made in the Bill.
Essential to the operation of democracy and to the preservation of freedom is not to impose taxation without representation. Essential to the preservation of democracy and freedom is to give to the people's representatives an opportunity to discuss the purpose of taxation, the manner in which it is to be imposed and collected, and the purpose for which it is to be spent. Even allowing for the immense powers the European institutions may have for setting the size of the budget and the manner in which the budget is to be expended, there is still left to the several national parliaments a considerable amount of freedom to decide the manner in which the taxation is to be collected.
At present the revenues of the Communities come in the main from agricultural levies, and from 1975 onwards all taxes charged at the frontiers of the European Customs Union will be revenue of the Communities. It is envisaged that the yield from the harmonised VAT may not be sufficient to meet the budget of the Communities. It has been specifically provided in Article 22 of the decision of 21st April, 1970, that any further changes in taxation would necessitate a special Council decision and endorsement by the individual member states in accordance with their respective constitutional requirements. The Community recognise that the different member states have different systems of imposing taxation and collecting taxation, have different authorities for imposing taxation and collecting revenue, and they have, therefore, specifically provided that each member state would proceed in its own particular way according to its own constitutional requirements, to conform to Community requirements.
The Bill proposes that the Government need not come before Dáil Éireann to obtain additional taxation. It could be imposed simply by ministerial regulation. This would be a serious breach of the democratic principle that there should not be taxation without representation. It is not sufficient to say that because a government is elected by the democratic process it is in itself the essence of democracy and full democratic representation takes place at governmental level.
The Constitution recognises the fundamental importance of giving Parliament a full say in the imposition of taxation and in the control of expenditure. The power to impose taxes is reserved to Members of this House as the directly elected representatives of the people who, on that account, have a complete mandate from the people to regulate taxation, to say what money should be paid and how it should be expended. That power is not given to the Seanad. If the people who framed our Constitution and those who voted in favour of it decided it would be wrong to give the power of imposing taxation to any authority other than to all the directly elected people's representatives in this House, surely it would be much worse to pass this enabling Bill which would allow taxation to be imposed on a personal decision of a Minister. No doubt he would consult the Government but it would not be a decision of the people through their directly elected Parliamentary representatives.
This principle was recognised in the British Parliament. In their Communities Bill the British Parliament specifically provided that the power of taxation would not go with the other powers conferred on Ministers. As I pointed out this morning, I always hesitate to quote British or foreign examples to this Assembly. We should be able to make our own decisions on merit alone. However, it is of interest that in Britain and in a number of other member States the power to impose taxation simply by ministerial order is not given to Ministers.
The Minister acknowledged in his speech on Second Stage that many of the steps necessary to implement directives and secondary legislation might be taken by legislation. It need not necessarily be done by ministerial order or regulation. It is possible that a reasonable Minister and Government might consider they should not impose taxation without going to the Dáil and putting it in a legislative proposal. However we cannot assume all Ministers and Governments will act reasonably in the future. In order to prevent Ministers succumbing to the temptation of collecting taxation in the easy way without debate it is essential that our amendment be written into the Bill and I hope the Minister will see his way to accepting this. It would ease the public mind considerably, if he made it clear he had no wish to use regulations to impose taxation.
As the Minister knows, more declarations in this House will not suffice to debar Ministers in future from using legislation in a particular way if the power is given to them. From my reading of parliamentary history, I recall an undertaking given in relation to the Offences Against the State Act that the prohibition against demonstrations within half a mile of Leinster House would not be used against anybody except subversive organisations. However, the first two organisations against which that power was used were the National Farmers' Association and post office workers. I have no doubt the Minister of the day gave the undertaking in good faith; I suspect the Ministers who used the power in the way in which they did some 30 years later did not recall the undertaking previously given. However, it indicates clearly the grave danger of putting on the statute book an enabling measure which could be used in a way not intended by the legislators.
It would not diminish or take from the effect of the Bill if this restriction was imposed. It would still be open to the Government to come to the Dáil and seek to get the increase in taxation by way of a Bill from the Dáil. In fact, I think the Minister's position would be improved because the people would have spoken through their elected representatives. That is the way democracy must work. If we give away that power to the Minister we will be doing a grave disservice to the people.
It is interesting to note that the Constitution recognises the importance of financial matters. It is provided in the Constitution that the Taoiseach, the Tánaiste and the Minister for Finance must be Members of the Dáil. There is no such provision in relation to any of the other Ministers. This provision in the Constitution shows that there is clear recognition of the essential link in the democratic process between the imposition of taxation, the expenditure of public money and the authority of the people. This must only be given after an open and free debate in this properly elected Assembly.
What we are proposing here does not conflict with the obligations of the European Treaties. In fact, it gives life to the obligations of the European Communities because the Communities want the people to be involved in decision-making. This was clearly recognised in the October communiqué from the Summit Conference where the Ministers recognised as a serious weakness the structures and procedures which caused the people to be alienated from and to be too far removed from decision-making. If we are to divest ourselves here of financial control over the Government we will be doing a grave disservice to our people and we will damage the whole approach which is necessary if our people are to accept and be content with the European institutions.
Our Constitution also provides that justice must be administered in courts established by the Constitution. The power conferred on Ministers in sections 2 and 3 of this Bill is so extensive that Ministers could, by order or regulation, establish their own tribunals to administer justice. By virtue of the amendment made in the Constitution earlier this year, such tribunals would be regarded as valid. The amendment to Article 29 of the Constitution is so extensive that any act done and necessitated by membership would be valid. It might be open to argument that what was done in the establishment of certain tribunals was not necessitated by membership but was done because a Minister considered it was the most convenient administrative way of achieving the objectives of the Community, but it is undesirable that we should have any area of doubt or argument. There is certainly nothing in the European Communities which would prevent them from issuing a regulation or a directive which would require the establishment of such a tribunal for the purpose of administering certain matters which at the moment can only be administered in the Irish courts established and recognised by our own law. We say it is essential to ensure that justice is administered only in courts established by our law, except on such issues as might arise in relation to the interpretation of European Community law, which would be matters for the European institutions. It would be wrong were we to have courts and tribunals established by ministerial order, and that could be done were we to pass the Bill without the brakes which we seek to apply in this particular amendment.
Our Constitution and the European Convention on Human Rights say that it is wrong to declare acts to be infringements of the law which were not so on the date of their commission. There is no such provision that I am aware of in the European Community Treaty. While it is unlikely that the institutions of the Community would make such a requirement, it could happen. Certainly this legal principle is not as universally respected in Europe as it is in our legal system. If the Minister's reply in this matter is that it is unlikely that the European Communities would require us to declare acts to be infringements of the law which were not so at the time of their commission, that kills any opposition to the amendment. It is better to write in this amendment to provide this safeguard in case of any future doubt about what may be considered at the moment to be daft and imprudent.
The same argument applies in relation to subsection (4) where we seek to ensure that the power would not include power to make any provision which would take effect earlier than the date contained in the provision. We are not concerned with offences here, but simply with any other obligations and liabilities which could arise under the regulations to be made by the Ministers. It is essential that we should keep within the control of this House, and of the Seanad, the right of creating new criminal offences. It is an essential to our legal system that every person knows the law and is presumed to know the law. The tragedy at present is that, whatever our knowledge may be of domestic law, we have little notion of many of the new legal obligations which will arise from the 1st of January next. In their annual report issued yesterday the Incorporated Law Society of Ireland stated that they had made urgent representations to the Government asking them to issue, without further delay, a clear guide to what the legal position would be after the 1st January, 1973, in relation to a wide area of legal matters, and particularly in relation to such existing Irish laws as may be amended or repealed. The Incorporated Law Society have pointed out that the Government have not come forward with this guide so that even legal practitioners, who know more about the law than the ordinary man in the street, find they are in a fog created by Governmental inactivity. The Government has done nothing to dispel this fog since the 10th of May last when they got the "green light" from the people indicating that they wanted to go into the EEC.
This is a deplorable situation, but it must not be made worse by conferring on Ministers the right to create new criminal offences simply by means of ministerial regulations which will not get the kind of public debate which ought to take place before any new criminal offences are created.
There are many aspects of European Community law which might not be regarded as serious moral issues. Taxation offences could occur which would not be of a criminal nature and might not be regarded by people as matters of any serious degree of moral turpitude. There might not be much public interest in legislation for new criminal offences dealing with financial and other Community matters, but if somebody was accidentally caught up in this new civil and criminal labyrinth this might have most serious consequences for him, his reputation, and his wife and family.
The reservation which we seek to impose here is not one which will obstruct the functioning of the EEC. It will not prevent us fulfilling all our obligations under the European Economic Community, but it is a safe way of involving our people in the decision-making and a safe way of providing an understanding of what the Community is endeavouring to do.
Finally, we provide that the powers cannot in any way be used to limit the fundamental personal rights guaranteed by our own Constitution or by the European Convention of European Rights and Fundamental Freedoms. There is often confusion in the public mind between the European institutions of the Community and the European institutions of the Council of Europe. They are not one and the same, although the Assembly of the Council of Europe and the European Parliament meet in the one building and occupy the same seats — though not at the same time — in Strasbourg. They are separate entities and the European Community institutions are not necessarily governed by the principles set out in the European Convention of Human Rights and Fundamental Freedoms. The several nation states who are members of the European Communities are also participants in the Council of Europe, but at least one of the Member states of the European Communities has not yet ratified the European Convention, and two of them have not yet subscribed to the European Convention, in such a way as to give an individual who is aggrieved, a right of complaint to the European Commission. While I would say, and acknowledge, that it is impossible that the European Communities will act in a way which would be contrary to the European Convention of Human Rights and Fundamental Freedoms it is possible, particularly when one sees that some countries, when under stress, can avoid their obligations by notifying the Council that they are doing so, will even avoid their obligations though it is illegal for them to do so.
Our amendment is one which I believe should commend itself to the Government, particularly at a time when Ireland has a complaint before the European Commission of Human Rights and Fundamental Freedoms and are glad to be able to use that institution in order to voice their complaint about allegations of torture and ill-treatment of Irish people in Northern Ireland. We must ensure that this right continues.
I hope the Minister will not be put off by advice which he may get from his experts. The Minister knows well the consequences of expert advice sometimes. The expert advice given to the Committee of Ministers at the Council of Europe, as the Minister knows well, was advice which would have prevented the European Convention of Human Rights and Fundamental Freedoms being amended so as to prohibit discrimination on religious, political or racial grounds in respect of access to employment or the allocation of housing.
The experts met for two-and-a-half years and said it would be awkward to do it. The Committee of Ministers went further and decided that in their opinion it was not desirable or expedient, but that was a decision of the Ministers on political considerations. It was not desirable or expedient to them because it would have been a matter of some embarrassment to them if individuals were to make complaints about their conduct before the European Commission of Human Rights. If the Assembly of the Council of Europe, the Parliament of the Council of Europe, had listened to the experts and had accepted the view of the Ministers that nothing should be done, that would have been the end of it, but the Minister and his Government—and more power to them—and all the Irish delegates to the Council of Europe insisted that we should not accept the view of the experts. As a result the parliamentary representatives collected in the Council asserted their right to require that these matters be written in, even though the experts found it difficult and found that it was not an easy exercise to draft a convention to comply with the wishes of the parliamentarians. But it now has to be done because the Committee of Ministers has been overruled by the Assembly and the experts have been sent back to their desks to do the work that parliament says they must do.
We are not doing anything which offends against our obligations in the European Community. There may be some grey-haired men behind desks in Brussels or some young whiz-kids who might not like these brakes to be put on, but these brakes are to stop our own Ministers at home from running berserk and running amok. There is nothing here which in any way conflicts with our obligations to the European Communities, with our obligations to our people under our Constitution or the obligations which lie on us as Europeans to observe the European Convention of Human Rights. I believe it would vastly improve the Bill and would certainly help to remove some of the grave worries which lie on Members of this House and members of the general public about the unnecessarily extensive powers which Ministers are seeking in this legislation.