Dáil Éireann debate -
Wednesday, 8 Nov 1972

Vol. 263 No. 6

European Communities Bill, 1972: Committee Stage (Resumed).

Question again proposed: "That section 2, as amended, stand part of the Bill."

Mr. Bruton

I should like to know if the Minister has thought about the matter which I and Deputy FitzGerald were referring to last night. It is not a major point but a minor drafting point which would appear on the face of it to contain an apparent contradiction between one provision of the section and another. It says that from 1st 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.

The problem, as far as I can understand it, arose from the fact that Deputy FitzGerald felt, and I shared his view, that this section would be at least ambiguous in its application to EEC directives because these are not framed to be directly applicable but framed so that, in order to make them applicable, the Government must introduce legislation through the domestic process of the nation state. This section would appear to make these directives directly applicable by saying that acts adopted—which would include directives—shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties.

If a directive were not implemented in time there might be some difficulty in deciding whether or not an individual could sue to have the provisions of the directive implemented by the Irish courts. I cited an example last night of a directive existing in regard to agricultural matters by which the countries are directed to introduce within a certain time limit a premium for farmers who keep accounts; but the countries are also decided to be free to decide that in certain regions, as far as I know, this provision shall not apply or shall be varied in its application. The decision whether it should apply in a certain region is something that must be decided by the nation state and must be implemented through legislation. If the Irish Government failed to introduce any legislation to implement this provision and the time limit for doing so expired and if at the end of that period a man who had been keeping accounts took action against the Government to make them give him the premium which the EEC had directed should be given, the problem would arise.

Part of the section says that the directive shall be part of the domestic law of the State. If you are interpreting that part of the section it could appear that, even though the country had not introduced domestic legislation implementing the provision regarding farm accounts, the man would be entitled to enforce it against the Government. Yet the State could say: "Perhaps in principle we should be giving this but we are free to make regulations that this provision shall not be applicable in certain parts of the country and that the conditions of it shall be spelled out. We have not done that; there is no domestic provision on this matter and therefore your general claim for a premium in regard to farm accounts falls because no domestic provision has been made for the precise terms and area of applicability of the premium."

This seems to me to be a problem. I do not think the Minister or his advisers would be acting in bad faith in this matter. His advisers have had time to consider the point overnight. If they are satisfied that no conflict will arise as a result of the difficulty I envisage and that the Bill as it stands is perfectly satisfactory, I would be prepared to accept that on the expertise of the Minister's advisers; but if there is a problem the Minister should not hesitate to introduce a separate section to deal with the particular method whereby directives, as distinct from directly applicable regulations, will be brought into the domestic law of the State.

Mr. Ryan

I should like to know if the Minister had an opportunity of thinking about this overnight and if he has any views to offer other than those we heard from him yesterday.

Minister for Foreign Affairs (Dr. Hillery)

I have given my interpretation and stated my belief that this is the way to give effect to the Act of Accession in our law. I have done this several times, as did Deputy Haughey and other Deputies who understood it. If I thought there could be any finality in the situation I would repeat again what I have already said. The Deputy has made no proposals. In many continental countries a treaty once concluded becomes part of the domestic law and it is established in those countries that provisions of a treaty as part of the domestic law are of two kinds, self-executing—in the case of the Treaty of Rome these would be directly applicable—and executory. Executory provisions, although part of the domestic law, require further implementing to bring them into force. This distinction is applied by the Communities' treaties in Community secondary legislation. Some acts are directly applicable; others require to be implemented by member states. It is carried down into our law by making the treaties part of our domestic law and by providing in section 2 that acts of the institutions are part of the domestic law under the conditions laid down in the treaties. The conditions laid down in the treaties, as I have said several times, are that some acts are directly applicable while others are brought into force by action of our own.

There are two things. One is, I am quite satisfied that this section 2 covers the situation. Largely speaking, it is true that regulations have direct effect and directives have to be implemented by action of our own but some directives have directly applicable effect and many regulations need ancillary legislation. I do not know how you bring finality to the situation.

Mr. Bruton

Could I ask the Minister a question?

Dr. Hillery

I have two jobs. One is to get the legislation through the House. The other is to make you understand.

Mr. Bruton

The ignorance we may be displaying may possibly be shared by a number of people in the country. The Minister should not be too patronising——

Dr. Hillery

I am not patronising.

Mr. Bruton

——in delivering little homilies as he did last night.

Dr. Hillery

Obviously, finality is not possible.

Mr. Bruton

No, indeed. Could I ask the Minister a question? If a directive is made by the European Communities instructing governments to do something within a certain time and the Irish Government fail to do it in that time, can an individual person in this country who would think he would benefit by that directive institute civil proceedings against the Government here to get them to enforce the provisions of these directives?

Dr. Hillery

Under this section? We are trying to legislate. The Deputy is raising a hypothetical situation.

Mr. Bruton

It is a pretty likely situation.

Dr. Hillery

I do not envisage a government refusing because by this section we bind ourselves. The Treaties bind us and we are bound to carry out the obligations. The Government are bound to do it. The Deputy has gone on to another thing. There is nothing we can introduce into this section to deal with a government that would not carry out the obligations.

Mr. Bruton

What we should try to do is to establish the precise legal position as regards that person—

Dr. Hillery

We cannot do it under this section.

Mr. Bruton

because it has happened that individual members of the Community have not implemented directives, for instance, the Italians on a number of occasions. They did not introduce value-added tax.

Dr. Hillery

I will put it another way. If the Deputy has a proposal that anybody wants, let him put it up but let us have finality at some stage.

Mr. Bruton

I am not a draftsman and the Minister has told us we are not draftsmen and I agree with him. The problem I would like the Minister to settle would be this: if an individual person wants to enforce a directive which has not been implemented as it should be by the Government introducing implementing provisions, would that case fall because the directive was phrased in general terms and for it to be effective there must be specific provisions and therefore the case would fall in the domestic courts or could it be enforced in the domestic courts despite the fact that there were no specific provisions made by this country? The essence of a directive is that it is not directly applicable and therefore there are no specific provisions which can be relied upon by a litigant and the essence of a directive is that there be specific provisions. If a person is trying to enforce law in the normal way he can rely on specific legal provisions. In this case, when trying to enforce a directive against a government which has failed to make the provisions the individual has no specific provisions to rely upon in making his case. All he can do is rely on a directive made in Brussels which of its essence is phrased generally and which of its essence very often allows discretion to the government. Therefore, there is no specific legal base upon which a person can take legal proceedings in the Irish courts to enforce against a government a directive which they have in general accepted under section 2 but for which they have not introduced the necessary implementing provisions. That is the point I am trying to establish. I think we could deal with it if we could draft some separate section which would lay down the position in this matter, but I agree with the Minister, I have not got a specific proposal. Perhaps on Report Stage we may be able to devise something.

Dr. Hillery

May I put it this way: here we are legislating to bind the Government to do a certain thing to implement directives and into this legislation the Deputy wants another section to bind the Government to introduce them. You want to do it twice. This in fact is what the Deputy wants to do. Once we bind the State to the treaties and to implementation under the conditions laid down in the acts of the institutions, that is done: that is binding on the Government.

Mr. Bruton

Is that enforceable by an individual in the Irish courts?

Dr. Hillery

If a Government decide not to implement this, what can we bring in that will make the law better? We are here dealing with law.

Mr. Bruton

We can clarify the position.

Dr. Hillery

How do we force a government to do something we are binding them to do?

Mr. Ryan

In reply to Deputy Bruton's query, which is a very valid query, and the kind of problem that individuals, companies and the State will have to deal with once we enter the European Economic Community, the answer is that if the State or any person here fails to discharge obligations, an action would lie against the State or any person who defaulted in fulfilling the obligations. If the remedy was not available in the Irish courts, it would be available in the courts of the Community.

Mr. Bruton

There would be no specific implementing provisions.

Mr. Ryan

Even if there were not specific provisions in our own domestic law, the remedy would be available in the European legal structure. There might be difficulties of implementation. I do not know enough about European enforcement procedures to say how they would precisely work.

Dr. Hillery

It is true that if you had to force a government to do its job it is through the institutions of the Community that you would have to make your approach, not through a section in our own legislation.

Mr. Ryan

Yes. I would like to support the arguments which were made last night in criticism of section 2 and I would refer the Minister to the Treaty of Accession which provides under Article 2 that "from the date of accession the provisions of the Treaties and the Acts adopted by the Institutions of the Communities shall be binding on the new member States and shall apply in those States under the conditions laid down in those Treaties and under this Act." The difficulty that arises in relation to section 2 stems not from the Community documents but, in fact, from our own Constitution. It was felt, I suspect, by the draftsmen necessary to introduce the phrase "domestic law" by virtue of section 6 of Article 29 of the Constitution which provides that "no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas." It may be felt that, unless one captures in section 2 directives as well as regulations, directives need never become part of the domestic law of the State because of Article 29 of the Constitution. This is my own thinking on the matter. I may be wrong but it seems to me that that might have been the difficulty the draftsman foresaw, that the directive might never be effective, could never become part of our domestic law unless we identified it as something requiring control under Article 29 of the Constitution.

Having said that, I still think the particular form used in the Bill is untidy and certainly gives rise to the difficulties which have been very properly identified. These difficulties were overcome in the European Communities Act in Britain by clearly differentiating between regulations on the one hand and directives, recommendations on the other. Article 2 of the British Act reads—and it is worthwhile putting this on the record:

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression "enforceable Community right" and similar expressions shall be read as referring to one to which this subsection applies.

That emphatically brings without further enactment into the law of Britain only Community regulations, that is, these obligations which under the treaty without further ado or further act of government or a minister go into the domestic law of member countries. We are doing more than that in section 2. Not only are we bringing in Community regulations but we are providing an umbrella for directives, decisions and everything else which might subsequently be done in relation to them by a Minister.

Perhaps we should break down section 2 in some way so as to make it clear that, while we are providing an umbrella, we are not creating legal obligations and legal rights which are unenforceable or require further action. We ought to differentiate between the deed that is done and requires no further action, and the deed or the act which requires some further action on the part of the Minister. If we separated those two things we would avoid a great deal of confusion. Therefore, I would hope that, between now and Report Stage, the Minister might have another look at it and see if, without in any way infringing on what the Minister is trying to achieve, we could do something to identify these two separate areas. They are separate and they ought to be identified as such.

Mr. O.J. Flanagan

In relation to section 2 of this Bill which has been read by speaker after speaker, in order to clear up any misunderstanding that may be in my mind, may I take it that every order, regulation and directive in the explanatory memorandum is covered by the Bill, and that all the regulations in the explanatory memorandum which has been circulated from the General Office on the European Communities Bill, 1972, automatically become law on 1st January, 1973? Am I right in assuming that, or am I wrong?

If I am right in assuming that I want to put it on record that this is a most undemocratic procedure, in my opinion. First and foremost, we are adopting laws about which we know nothing. Secondly, they will have a vital effect on the economic, social and cultural life of the country. Thirdly, they are amendments to certain of our existing laws on which the public have not been consulted. I will be seriously perturbed if I find that, as a result of the passing of this section, Regulation 184/66/EEC of 21st November, 1966, will become part of our domestic law immediately. This regulation deals with the collecting, checking and transmitting of statistics obtained with a view to determining revenues of agricultural holdings.

Regulation 91/66/EEC of 29th June, 1966, refers to the selecting of farm units for the purpose of determining incomes on agricultural holdings. Am I to assume that those regulations will be included in our law from New Year's Day? Does this mean that those who are engaged in agriculture will be subject to statistical checks for the purpose of extracting new and additional taxation from them? This has not been clearly explained by the Minister for Foreign Affairs or any Minister.

I also find that on the passage of section 2 the Land Act, 1965, will be altered with regard to the provisions on the right of establishment in land "in certain limited cases". I am not aware of what is meant by "certain limited cases". We had undertakings from the Minister for Foreign Affairs, and from every other Minister associated with him, that prior to 10th May, 1972, certain safeguards would be available to protect the land of Ireland for the people of Ireland and that neither now nor in the immediate future would foreigners be allowed to compete against Irish nationals for land available on the public market. I have no explanation, no condition, no serious data to convey back to those I represent.

This House is entitled to know in what circumstances are our existing laws to be changed with particular reference to the Land Act, 1965, and the purchase of land by foreigners in competition with Irish nationals on the open market. Committees may have been set up by the Department of Foreign Affairs and perhaps all these matters have been gone into by farming organisations and others but, if the regulations in the document which was circulated to us are to be binding as and from 1st January, 1973, very serious implications arise.

I want to direct the attention of the Minister to Regulation 120/67 of June, 1967 on the common organisation of the market in cereals. I want also, as the representative of an agricultural constituency in which wheat is grown on a large scale, to refer him to Regulation 2394/70 of 27th November, 1970, on communication between member states and the Commission on quantitative data on imports and exports of wheat and wheat flour. This has not been explained or discussed and we are not in a position to say in which way it will affect our constituents. Regulation 1893/70 concerns the sale of butter from public stocks. This will have a serious effect on the lives of our people.

Mr. Haughey

One suspects the Deputy of being facetious.

Mr. O.J. Flanagan

Directive 68415 of 20th December, 1968, refers to the freedom of assets for aids to agricultural workers who move from one member state to another. Again there is nothing of an explanatory nature in regard to the character of the aid or as to who qualifies for it. In other words, we are buying a pig in a bag. Assuming that some agricultural workers may come from any of the other member countries to here, what will the effect of this directive be on us? This has never been discussed. In this section we are taking on ourselves a volume of regulations, directives and laws about which we know nothing. The Government have failed miserably to provide the House, the country, the farming organisations, the trade unions, the workers, with information and data on the directives, regulations and laws which will so affect our domestic legislation. It is not a democratic way of doing things. While he is still here, the Minister for Foreign Affairs should see that the House and the country are made aware of the effects of these regulations and laws.

Mr. Tully

We are not about to buy a pig in a bag. On 10th May last we bought that pig. The decision then was taken in the full knowledge that certain things were being done. I and my party bitterly opposed the proposal to buy the pig. We did our best, we gave the explanations Deputy Flanagan has now been given to as many people as we could, but the people did not believe us and voted overwhelmingly in favour of accepting what Fine Gael and Fianna Fáil had told them.

It is idle now to talk as if we could have the referendum again. It is idle to make pre-referendum speeches. They are a waste of time. We are now dealing with facts, the decision having been made. We either have to accept the decision of 10th May last, which was given by an overwhelming majority of the Irish people, or we can say that the Irish people had no right to do that and try to reverse engines. It is section 2 we are discussing now, not an amendment—amendment No. 4 was dealt with, withdrawn, last night. What we are doing is putting into legislation what we are required to do if we are serious and if the Irish people were serious on 10th May.

I agree with Deputies Bruton and Ryan that, if it is at all possible, we should try to protect our interests as far as possible, but nobody has come up with a solution. The fact that the British Parliament used a lot more words does not solve our problem. I have always been critical of the number of words used in legislation. We tend to use a superfluity of phrases and expressions which could be cut down into plain, simple language.

Section 2 seems very plain—whether it is right or wrong I do not know. I cannot say whether it is the correct thing to do, but the Minister must be satisfied because at the end of the year he will have the problem of seeing that these things are done properly and we will have a successor to him. We have to decide now that we must try to save the bacon, but I do not think there is a thing we can do. If somebody has a concrete proposal he should have put it down here today or we should have it for the Report Stage. If we talk on this section until 31st December and prevent the passing of the legislation, we are still stuck with the EEC. We debated this matter all yesterday evening and part of today. Either we should agree to let it pass and have a proposal for the Report Stage or, alternatively, call a vote and decide whether the Members want this legislation to go through. It is a waste of time and a lot of codology to continue in the way we have been conducting the debate. I am as opposed to the idea of the EEC as I ever was but I am a practical man and I realise the people have decided. I realise I have no right to try to thwart what they wanted to do.

Dr. Hillery

That is a breath of fresh air.

Mr. Bruton

What is at issue is not an intention to thwart the decision of the people in this matter but, as far as possible, to lay down precisely their rights under this legislation and their rights as citizens of the EEC. This is what we are trying to do.

Deputy Flanagan made a point which should be borne in mind by the Minister. In the explanatory memorandum there is a list of legislation which will be affected. For instance, in regard to the Finance Act, 1932, section 37, it affects provisions regarding the importation of materials for ship building. It does not tell us precisely how they will be affected. A little more detail could be given at a later stage on how the items mentioned in the annex could be affected so that people will know where they stand. We will be in a unique situation where there will be two bodies of law affected at the same time, namely, the Irish law and the European law, and it is important that people should be clear about the matter.

The Minister has said that copies of the regulations mentioned in the Annex are available in the Library. However, they are available in English translations by Her Majesty's Stationery Office. I understand the translations were rushed through and were not good translations. As a result of Irish representations to the British Authorities, many of the translations had to be changed because when the Irish officials were working from the British translations they found they were inaccurate. They were rushed through for prestige purposes by the British Stationery Office. If those are the only translations on which we can rely we are not in a good position. The point made by Deputy Flanagan is in relation to existing legislation but I am more concerned with proposed legislation. However, draft directives which have not yet been agreed by the Council of Ministers are available in the Library only in French. Some of the draft directives dealing with agriculture are translations made by the British Ministry of Agriculture, Fisheries and Food. We are not even producing our own translations for the use of our officials, let alone for the use of Members of the Oireachtas. If our interests are to be protected we must improve to some degree the translation facilities so that Deputies and officials can have translations of the regulations by Irish officials. Obviously we would not have the manpower to do all of this work but we should examine the problem and see if we could do more in our own interests.

Mr. Ryan

With the greatest of respect to Deputy Tully, who is a very senior and much respected Member of this House, he misconceives the situation. On the 10th May the people of Ireland said Ireland may become a member of the EEC. The people gave permission to join the EEC but the ultimate decision as to the manner of joining rests with the Oireachtas by virtue of Article 29 of the Constitution——

Mr. Tully

Is the Deputy going to make a proposal that we do not enter the Community? If that is the case I will vote with him.

Mr. Ryan

No, but I would ask the Deputy to bear in mind our responsibilities. Article 29 of the Constitution states:

No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.

What we are doing in this Bill is to determine the extent to which the obligations will be applicable.

Mr. Tully

We cannot do that.

Mr. Ryan

We have the right to determine the manner of implementing Community obligations. We must discharge this obligation and it is a pity that there are not more Members here to discharge it and to understand it. We can say what methods we are going to adopt to implement these agreements. The point at issue in section 2 is whether everything is to be brought in one swoop under section 2 by applying everything regulations, decisions, directives, recommendations and all directly, immediately and fully, or whether we will do no more than we are required to do by the treaties, namely to permit regulations to come into force once they are adopted in Brussels. In relation to secondary legislation, we want it to be separated from section 2 to require that it be processed by ministerial regulations subject to review in this House. The question is whether we want to apply everything immediately and directly under section 2 or whether we decide to do under section 2 only as much as we are obliged to do and do the rest under a system which will allow us to review the matter from time to time. That is the great difference.

Earlier in the debate I quoted the first subsection to section 2 of the British Act but I omitted to quote the second subsection. I think it is necessary to do this in order to emphasise the way in which the British Parliament overcame this problem. I do this with great hesitation because I do not like to hold up British conduct as an example which Irish people should necessarily follow. However, English is the language in which most of us have facility and, therefore, British legislation and example is readily available and is easily understood.

I have already emphasised that the British specify that regulations will come into effect without further enactment. They deal with directives in subsection (2) of section 2, in a different way as follows:

Subject to Schedule 2 to this Act at any time after its passing, Her Majesty may, by Order in Council, and any designated Minister or Department may by regulations, make provision—

(a) for the purpose of implementing any Community obligation of the United Kingdom or enabling any such obligation to be implemented, or enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the treaties to be exercised, or,

(b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force of the operation from time to time of subsection (1) above.

There you will see an important distinction is made in the British legislation. They spell out clearly that regulations come into effect without further enactment, and spell out separately what must be done to bring directives and other secondary legislation into operation. We do not do that. We put them all under the "do it without further enactment" clause and, rather untidily, in section 3 we say that, if a Minister thinks he should make regulations to facilitate the operation of what we have brought into operation under section 2, he may do so. We use loose phrases such as "the Minister may make regulations which he considers proper"——

Mr. Haughey

The procedure is basically the same as the British.

Mr. Ryan

I do not take any strong issue with it except to say that it is bad, clumsy draftsmanship, and I am sure Deputy Haughey will agree with me on that. We ought to separate the two points: first, regulations will specifically and clearly come into operation without further enactment, and second, directives should be covered separately by section 3.

Dr. Hillery

We have studied the British Act. It is invidious to make comparisons with other countries. It is not in my nature to accept that everything done in Britain is better than what we do here. The British way of doing it adds nothing to the clarity of the situation. As I said last night on many occasions, it is not that easy to separate regulations and directives under the treaties. There is a blurring in some areas. After long deliberation we have decided that this is the better way for our situation. One is limited in what one can say when comparisons are made. It is invidious to make a comparison with what was done in the British circumstances. This is what is most suitable for our situation. We have a decision to change our Constitution to make it possible to be members of the Community. We also had in the referendum a consultative aspect, which was clearly stated by the Taoiseach, asking the people if we were to join it. The absolute position is nothing like what the Deputy said.

By the accession treaty we have undertaken certain obligations. In Article 2 what is proposed is what precisely we are required to do by the accession treaty. This is absolutely necessary because the accession treaty says that from the date of accession the provisions of the original treaties and the acts adopted by the institutions of the Communities shall be binding on the new member states and shall apply in these states under the conditions laid down in these treaties and in these acts. It is absolutely necessary to give the force of law to those provisions in the treaties and of the secondary legislation which are directly applicable to the member states. It is difficult to draw a line between those provisions which are directly applicable and those which are not directly applicable. In the last resort this would come to be decided by European Court of Justice.

In certain provisions of the treaties, it is considered by us that the best way we can give effect to them—that is, these provisions which may not be directly applicable such as those establishing the legal capacity of the Community and of the European Court of Justice and the jurisdiction of that court—is to make them part of our domestic law. For those reasons, it was deemed better to give the force of law to the treaties in full rather than to go along an uncharted road, which would be futile. Others think such a course would be open to the risk of confusion and misinterpretation in trying to separate provisions for which the force of law is necessary or desirable and provisions for which it is not.

I would like to repeat that in our circumstances the law, as we have drafted it, is for us better than what was drafted in Britain for the British circumstances. This section proposes no more than precisely what we require to do under the act of accession to the treaty.

Other points were raised by Deputy O.J. Flanagan. These points could be called "water under the bridge". We made it clear before the referendum that the right of establishment generally is not yet an act of the Community, but there is a right to establish on land which has been idle for two years. A labourer in agriculture in any of the countries of the Community, if he has been an agricultural labourer for two years, becomes entitled to buy agricultural land in that country. This has been no problem to our people here. The general right of establishment on land is not there.

The Deputy also mentioned part of the arrangement for collecting statistics. He is concerned with the imposition of taxation. There is nothing to force a person to give information. It is a matter of allowing the collection of statistics to make information available for the structural policies which will be of benefit, as nearly all the things we are proposing will be of benefit, to our people.

Mr. O.J. Flanagan

If those engaged on the land are asked to return their incomes and the prices they receive for their agricultural produce and to give a full account of their revenue derived from work on the land, will that not be used against them for taxation purposes? People in the country will be slow to disclose such information.

Dr. Hillery

They do not have to do so.

Mr. O.J. Flanagan

If they do not have to do it, we may take it that that is one of the EEC regulations which will not be binding on the people. The Minister should say a "yes" or a "no" in relation to this point concerning our whole hearted adherence to Article 7 of the Treaty of Rome which clearly indicates that within the field of application of the treaty any discrimination on the grounds of nationality shall be prohibited. That relates to the purchase of land. Whatever concessions may be obtained during the transitional period, Article 7 of the Treaty of Rome clearly precludes discrimination against foreign purchasers of land, just as it precludes discrimination against foreign fishermen fishing in our territorial waters. I am perturbed as a result of the arrangement made in regard to our fisheries and territorial waters. These arrangements are to be reviewed after a number of years. Is there any prospect, now that we are entering the Community on 1st January next, having accepted the full responsibilities—even though some of these responsibilities may slightly or even to a major degree be disagreeable to us in some form or other—of having representation made by this Parliament so that there will be earlier reviews, particularly an earlier review in relation to our fishing limits and the extent of our territorial waters?

We are enacting the regulations now as agreed in the negotiations. If the laws as regards our fisheries are allowed to stand as negotiated, our fishermen will be put out of business in a very short time. We cannot wait for a period of eight or ten years before a review. We must have a review in a much shorter period because we will see the detrimental effect which the foreign trawlers will have by depriving our own fishermen, who are not well-equipped, of their livelihood and forcing them to compete with them. Earlier reviews are desirable. The people engaged in the fishing industry, as was the case with many small farmers, had their fingers burned on the 10th of May last. If everything we read in this memorandum is correct, they have suffered a severe scorching. We can help to apply a remedy. This House can impress on the Minister for Foreign Affairs and on the Government in general that frequent review is necessary with a view to easing the hardships imposed on us as a result of section 2 of this Bill. In view of the hardships facing the fishing industry in the EEC it should be possible for the Minister to arrange for a much earlier review than was decided on in the negotiations. Our fishermen are ill-equipped to compete with the foreign intrusion which EEC membership imposes on them.

I feel that they will be put out of business. Somebody must have a voice in these things in this House, and not within a period of ten years. In ten years' time, unless something is done in the meantime, they will be gone and foreigners will have the full benefit of Irish fisheries which should be safeguarded and protected for the Irish fishing industry.

Mr. Haughey

May I just say that I am astonished at the fact that somebody who is as long in public life as Deputy Oliver Flanagan is not aware of the simple fact that our Central Statistics Office has been collecting statistics of this nature both from the farming community and from the industrial community over the last 40 or 50 years and fundamental to that whole structure is the fact that these statistics are not disclosed to the Revenue Commissioners.

Question put and agreed to.

SECTION 3.

An Ceann Comhairle

I would point out that as amendment No. 5, in the names of Deputies Cosgrave and Ryan, is consequential on the acceptance of amendment No. 9, amendment No. 5 should be postponed until the Report Stage when it can be moved if amendment No. 9 has been accepted. As amendment No. 10 is consequential on amendment No. 6 perhaps it would be possible to discuss both together. One decision would suffice.

Amendment No. 5 not moved.

Mr. Haughey

I move amendment No. 6:

In subsection (1), page 3, line 16, to delete "Minister of State" and substitute "member of the Government".

I would urge on the Minister that he should accept this amendment. I believe there are very cogent reasons for making the change I suggest. The Bill, as it is drafted, speaks, in two instances, about a "Minister of State". I want to go back again to what I said about the importance of this Bill. This Bill, when it becomes an Act, will have constitutional status and it will rank in importance just immediately under the Constitution itself. Therefore, it is very important that we should adhere as near as we can in the legislation to proper constitutional terminology and phraseology. The Constitution knows no such animal as a Minister of State. The Constitution speaks about a "Member of the Government," it speaks about a "Department of State" and it speaks about a "Minister" who may be assigned or put in charge of a Department of State. Nowhere does it mention a Minister of State.

I would suggest, with all due deference, that there is constitutionally no such animal and that we should insert here, in these two cases, the proper description, namely, a "Member of the Government" because that is the legal person or the legal personality which the Constitution recognises or refers to. I strongly urge the Minister to make these two fairly simple changes. I think they are important in the constitutional sense and will undoubtedly improve at least the constitutional language of this piece of legislation.

Mr. Bruton

May I ask the Minister, in regard to Deputy Haughey's amendment, whether the term "Minister of State" is defined in the Definitions Act?

Dr. Hillery

Yes. I do not see anything very objectionable in the amendment except that there is a definition in the Interpretation Act, 1937. A "Minister of State" is defined as a "Member of the Government having charge of a Department of State". That would include the Taoiseach. Listening to Deputy Haughey the only possibility, to my mind, of somebody not being caught within that definition would be a Minister without portfolio. Whether such a Minister would, by definition, have functions in relation to a Department making orders to fit in with European Acts is unlikely. I do not feel very strongly about it. The definition is in the Interpretation Act, 1937.

Mr. Haughey

I recognise that, but it is not in the Constitution and I think in this particular Bill, because of its constitutional importance and significance, we should adopt the phraseology of the Constitution.

Mr. Tully

Is there a precedent for this? Has "Minister of State" been used in legislation up to now?

Dr. Hillery

Yes.

Mr. Haughey

If the other is the constitutional phrase why not use it? I am prepared to admit that I have probably put a piece of legislation through this House myself in which I have used the phrase "Minister of State" but——

Mr. Tully

The hurler on the ditch always sees more.

Mr. Haughey

——in this particular instance, because this Bill is so closely related to our constitutional procedure and will rank for a long time as next to the Constitution in importance, I think we should use the phrase which the Constitution uses, and that is "Member of the Government". Unless the Minister has any particular objection to it, which I cannot see, I think he might, if for nothing else but to humour me, accept it.

Mr. Tully

I would be afraid he might do it for that reason which would be the right thing for the wrong reason.

Mr. Ryan

Deputy Haughey's point in relation to the Bill is interesting, but not his suggestion that any amendment should be passed through in this House simply to humour Deputies. For a Member of the Government party who might not have spoken in the House for two years to suggest now that various concessions must be made in order to humour him is to make a suggestion which many people would find totally unacceptable.

The difference between "Minister" and "Member of the Government", as the Minister has pointed out from his quotation from the Interpretation Act, is that one might be a member of a Government without being a Minister. A Minister is a person who has a particular responsibility for a Department. I would not think it desirable that a Minister without portfolio, if we had such—and I think under our Constitution we could have such— should be making laws by way of regulation. It would be terribly important that this power should be confined to Ministers who have particular responsibility for their Departments and are answerable to this House for their Departments and would be handling in this House questions related to their performance of their duties. A member of the Government, who is not a Minister, would not have the specific responsibility for the particular area in relation to which he would be making his regulations unless he were to have assigned to him a Department, in which case he would become a Minister. This phraseology is one which we have been using in legislation for countless years. It might be wiser to stick to the terminology we know and understand and which has been interpreted from time to time in the courts rather than to use phraseology which might well create more difficulties than the ones which Deputy Haughey is no doubt trying to avoid.

Mr. Haughey

I am speaking from recollection but I am sure Ministers without portfolio have in the past made regulations.

Mr. O.J. Flanagan

A "Minister of State" and a "Member of the Government" is Tweedledum and Tweedledee; there is no difference, but if this will put Deputy Haughey into a reasonably jovial mood I do not see what objections Members of the House would have to seeing Deputy Haughey in a jovial mood. May I suggest putting into the Bill "Minister of State" and, in brackets immediately afterwards, "Member of the Government". Would that not solve the whole problem? Tweedledum and Tweedledee would be in the Bill, Deputy Haughey would be pleased and in jovial mood and Deputy Ryan would be satisfied in the knowledge that the phraseology that has been used up to now still stands.

Let me offer as a peaceful solution to the problem an expression with which we are most familiar nowadays "the Minister might consider the matter". On Report Stage he could put in brackets "Member of the Government". If the Minister feels that a Minister of State should go there he could bring in this amendment on Report Stage. It means the same thing as a member of the Government. I do not think it will change the substance of the section one way or the other whether you call him a Minister of State or a member of the Government because it is known what his responsibility will be. I believe Deputy Haughey has a valid point and I think it should be seriously considered.

Mr. Tully

I do not want to hold up the House because I do not think the matter is important enough to delay too long on it especially in view of the fact that Deputy Haughey included the other expression which is in this Bill. I believe in precedent. This House is guided by precedents. The precedent has been to use the phrase which it has been decided to use in this Bill. If it is changed now, would somebody get the idea that in fact, constitutionally, we were not entitled to use the existing phrase and could we bring down more trouble on ourselves than we would be avoiding? We should not waste too much time on this because I would remind the House that Questions are not until 3 o'clock. Those of us who have been here all day will not be able to leave until we either make some progress on this Bill or until Question Time comes and we all like to eat some time.

Sir Anthony Esmonde

This debate is rather at cross purposes. We have in this country Ministers of the Government and we also have Parliamentary Secretaries. In other parliaments they have Ministers of State who are a sort of halfway between members of the government and parliamentary secretaries. They are called junior ministers in other countries. We are largely dependent in this country for protection of the democratic right on the Ministers, the people who represent us at the particular time. I can see what is in Deputy Haughey's mind and I have quite a lot of sympathy with it, I do not think we have had a Minister without portfolio in this country for a great many years. I believe about 30 or 40 years ago we had a Minister without portfolio who was responsible for Posts and Telegraphs.

Deputy Haughey's amendment covers the wider sphere. Anything we discuss in a Euro-Bill is not confined entirely to Dáil Éireann but to the wider sphere of nine countries. There is a Minister of State in all British Departments who is an intermediary between the Minister, the man who has overall charge, and what we call parliamentary secretaries here. A somewhat similar situation exists in the German parliament. The French parliament is so complicated that I could not possibly analyse it here. Deputy Haughey's amendment does not in any way affect the Government here.

Deputy Flanagan's suggestion to meet the problem, if the Minister can accept it, is to have in brackets "Member of the Government". I do not know whether that would actually meet the bill but the Minister must have advisers who could tell him whether a Minister of State, which we have not got in this country but which we might find it desirable to have in the future, would meet the situation. I see the difficulties which face the Minister in Deputy Haughey's amendment but there is a good deal to be said for it.

Deputy Haughey is one of those far-seeing Deputies who looks to the future. We are discussing problems which the European Parliament may be discussing in the future. We may find ourselves up against whether a Minister of State can function or not. We might find it desirable at some future date to create Ministers of State so I think the Minister might give sympathetic consideration to it.

Dr. Hillery

My advice is that the Interpretation Act—I am not familiar with this area—lays down definitions. The definition laid down for a member of the Government is Minister of State for statute law purposes. That is the argument used for retaining the title "Minister of State". The Act is directed at statute law.

Mr. Haughey

I will withdraw the two amendments if the Minister does not feel too happy about accepting them. I am aware of the definition in relation to a Minister of State but it seems to me that this Bill is of such constitutional importance that it should relate itself directly to our Constitution and not to interpretive statutes. I will withdraw the amendment.

Amendment, by leave, withdrawn.

An Ceann Comhairle

As amendments Nos. 7 and 13 are related we could discuss them together. Separate decisions will be given if required.

Mr. Tully

I move amendment No. 7:

In subsection (1), page 3, line 16, before "make" to insert "with the prior approval of each House of the Oireachtas,".

The amendment suggests an alteration of section 3 (1) which states:

A Minister of State may make regulations for enabling section 2 of this Act to have full effect.

If the amendment is accepted it will read:

A Minister of State may, with the prior approval of each House of the Oireachtas, make regulations for enabling section 2 of this Act to have full effect.

Our reason for putting down this amendment is quite a simple one. During the debate on Second Stage the Minister in Vol. 263, No. 2 of the Official Report of 26th October, at column 251, stated:

The directives of the Community are to be applied in the member States by whatever method the national governments or Parliaments choose to adopt and it is these directives which are concerned in the ministerial regulations which will be made under the Bill.

Later at column 254 he said:

On the safeguards, the section which provides that the ministerial regulations will cease to have effect unless they are confirmed by Acts of the Oireachtas not later than the end of the year following the one in which they were made gives a very strong safeguard because it means the ministerial regulations will lapse if the Oireachtas does not pass them. It allows for debate but, as Deputy Ryan has pointed out, there will have to be a majority decision situation.

I intervened to say:

They will be in operation for 12 months before the debate takes place?

The Minister replied:

They will...

Of course the Minister, Deputy Hillery, was not quite correct and neither was I correct in saying that they would be in operation for 12 months because we are told that the section which provides for ministerial regulations will cease to have effect unless confirmed by Acts of the Oireachtas not later than the end of the year following the one in which they were made. That means that if in January of one year the directive was made almost two years could elapse before it could be debated. Members of this party as well as members of other parties have always been severely critical in this House of legislation by ministerial order. We have the right to debate orders made within a matter of 21 sitting days but here there is a different situation whereby ministerial regulations not made on the initiative of our own Ministers but made because they are directives of the EEC, can be introduced by a Minister and can be in operation for almost two years, regardless of whether a majority of the House approve them, before opportunity is given to debate them. This would be entirely wrong and on reflection I am sure the Minister will agree with me. I suggest that instead of having this regulation as it is in section 3 (1), we should have the right to debate the directives before the order is made. In that way we would safeguard the rights of the House and at least the Minister would be placed in the position of knowing that the order he was making would be given general approval.

I am sure Deputy Flanagan will agree with me when I say that I can foresee a situation arising whereby a regulation which may be suggested in a certain way by a Minister would not safeguard matters that are dear to the hearts of Members of the House and to people throughout the country affected by any such regulation. An effort must be made to provide safeguards. I am being reasonable on this matter. As the Minister is aware, I opposed membership of EEC. I consider it to be a bad bargain but we are now committed to going in and I shall not endeavour to hold up any necessary legislation in regard to our membership. However we are entitled to ensure that there are safeguards and, consequently, I appeal to the Minister to accept this amendment. It would be unfair of me to comment on Deputy Bruton's amendment.

Mr. Bruton

Amendment No. 13 seeks to do a number of things but basically it seeks to write into this Bill the setting-up of a committee of the Dáil which would have the power to examine and advise the Minister on proposals that are before the Council of Ministers and which will be decided on in the future. There is not much point in having a discussion here on any matter that has been decided already and which, therefore, cannot be affected by any such discussion. What is really valuable is that Members of this House should bring to bear on matters that have not been decided their knowledge of the effects on their constituents of any proposed legislation. What I am suggesting is consistent with Deputy Tully's suggestion, that is, that we should create a committee which would be in a position to examine all draft directives coming from the Community. There are a vast number of draft directives covering a great many technical matters. I am proposing that these should be examined in detail by a committee of this House. Such committee should have available to it the best possible technical advice so that the committee, possibly with sub-committees, would be in a position to examine in detail draft proposals and how they would affect Irish law as well as affect the constituencies of the Deputies concerned. The committee would be able to give to the Minister an informed opinion which would enable him to participate more effectively in the discussions of the Council of Ministers at which a final decision would be taken.

One of the great strengths that a Minister can rely on in any negotiations with the Council of Ministers is to be able to say to his colleagues there: "Unless you can give me this, I shall have great difficulty in justifying the position to my people at home." If there has been no advance discussion on a particular proposal the Minister would not be able to say that with much force. Obviously his hand would be strengthened if he could produce the deliberations of a Dáil committee referring to certain difficulties that might arise in relation to the implementation of any proposal.

Such a committee, too, would serve to educate Deputies on what is going on in the EEC and would enable them to give greater advice and assistance to their constituents. Also, when the implementing legislation is going through they would be better able to participate usefully in suggesting the implementing regulations.

Another point that is important is that the type of committee I envisage, and which would operate directly on the Irish members of the Council of Ministers, would bring a democratic voice into the legislative processes of the Community, a voice which at present is lacking. The European Parliament is not elected directly by the people. It is elected indirectly. It has only consultant powers. The ten Irish members will have to spend, perhaps, half the year away from this country. Therefore they will not be as much in touch with their constituents as would the members who spend almost all of the year here. If this proposal is accepted we will be able to supplement our membership of ten in the European Parliament by having the views of those Deputies who are resident in the country for the greater part of the year brought to the attention of the ten members who in turn, will bring their views to the Commissioner who, ultimately, will be the man to make the decision on behalf of this country. This would strengthen the process and would bring into the legislative machinery a greater number of people who are elected directly.

Perhaps Deputy Tully will correct me if I am wrong but if I understand his amendment it is to ensure that there must be advance consultation with this House and with the Seanad in regard to any regulations which the Minister proposes to make in implementing the regulations. I do not think that goes far enough because what the Deputy is proposing is that after a decision has been taken in principle in Brussels the Irish Minister must consult this House when he comes to implement that proposal by means of regulations. My proposal is that not only must the House be consulted before then but that it must be consulted before any Community decision has been reached in Brussels. The setting-up of a committee would be the means of implementing that proposal. It is clear that every draft directive emanating from the EEC could not be discussed here across the floor of the House; that would take an enormous amount of time and money and many of the provisions that would be considered would contain matters that might not have any great implications for this country.

Therefore I believe this function, which is a very detailed and technical one but nevertheless a very important one, could best be dealt with by means of a committee. That committee must have fairly wide powers. It must have a substantial secretariat which will automatically be able to bring every proposal before the committee in translation and also provide it with a memorandum on the basic effects of proposals on Irish law, spelling out what statutes are likely to be affected by any draft proposal which is before the Council of Ministers. On the basis of that memorandum which the committee would receive they would be able to invite the Minister to come and explain his attitude to the proposal.

It is important that this committee should not rely for its interpretation of the implications of a particular EEC proposal on the official version coming from the Department of the Minister concerned. It must also have an independent secretariat of its own which could produce its own interpretation which would equip the committee members to debate on equal terms with the Minister any interpretation he might have. This is something this House has lacked for many years and something which this committee should have if it is to deal with this very technical matter of EEC legislation.

It will be necessary to have a very large committee because EEC legislation covers a huge area. If we have a committee of 14 or 15 people, we are unlikely to get enough people who will be specialists in each particular area or we might have only one man who is a specialist, say, on fisheries legislation, and in that situation the committee would have to rely on that man only. What we would need is a reasonably large basic committee, with subcommittees considering, broadly speaking, the areas of each Department and submitting its opinion to the committee itself.

There are a number of other problems which will need to be decided upon in regard to any committee we set up. One of them is to what extent the committee should be in private, to what extent it could require the Minister to appear before it. I believe it should have the power to require the Minister to appear before it. It is very important that that power should not be used frivolously. In the EEC Ministers will have a greater burden of work than they have at the moment and it would not be fair to be asking them to appear before the committee all the time. However, they must have that power and it must be used responsibly. It should also have the power to call officials before it, to call outside evidence.

Deputy Haughey raised another important point yesterday in relation to committees. He said such a committee would diminish the effectiveness of the House in that every member would not be able to put his view to it. I think that could be got around if it were given as a right to any Member of the Oireachtas to make an oral submission to the committee in relation to any directives and if, during the period that his oral submission in regard to directives was being discussed, he would be present to give his views on the matter. This right of audience for Members of the House in committees of the House of which they themselves are not members is not without precedent. I understand it operates in the American Congress and it would get around Deputy Haughey's objection to committees.

Deputy Haughey seemed to suggest that this work should be done by a committee of the whole House on Fridays. I am sure he is aware of the volume of Community legislation and the detail into which it sometimes goes, and also of the fact that a draft may be published at one stage by the Commission and before any final decision is taken that draft may be altered a number of times. There would be grave difficulties involved in discussing that on the floor of the House. Would you have to bring the matter before the House a second time if, before a decision was taken, the draft had been altered in some minor respect? I do not think it would be practical to adopt the procedure of having the whole House consider this matter. A relatively informal committee with a specialised secretariat would be able to deal with this matter more efficiently and, as I suggest, all Members of the House could be allowed to make a submission or give evidence on a particular directive which would be before the committee at the time. This committee should also publish a report every year, or maybe more often, on its deliberations, on its contact with the Minister, on whether or not a particular recommendation to a Minister had been accepted.

I can see that there will be certain difficulties in regard to the operation of these committees. The main one is that the Minister will hold all the cards. If he is being asked to justify the fact that a particular proposal accepted by the EEC was not in the terms in which the committee of the House wished it he would be able to say: "I am the only person who was there at the Council of Ministers. I am the only person who knows exactly how the powers lay within the committee. I am the only person who can say what attitude each other member of the Council adopted. Therefore I am the only person who can say whether or not it was possible to get a particular proposal which reflected the view of the committee accepted by the Council." That is a constraint we shall have. Again perhaps the Minister will not want to disclose or possibly will not be able to disclose the attitude adopted by other members of the Council of Ministers, even to a committee of the House. This will restrict the debate to some degree. However, it is important that the Minister should be bound to disclose his position to the committee, should be prepared to explain how he acted on behalf of Ireland. The Minister is acting as a Member of this House on the Council of Ministers and the Government of which he is a member is responsible to this House. While he may not be able to give details about every other Minister, he should at least give details to such a committee of the attitude he adopted so that the committee can establish whether or not he has been doing his job.

The procedure I am envisaging is not at all without precedent within the European Community, and this is something to which I referred last night. The German Bundestag, when it was doing what we are doing today, namely, ratifying the European Communities legislation in 1958, inserted a clause into the Act which bound the Government to communicate projected EEC decisions to the Bundestag prior to a decision being taken on them so that the Bundestag could express its view on them. What has happened I understand is that when the President of the Bundestag receives from the Government a particular draft directive which is proposed he refers it to a committee of the House which will then be able to go into it, tease it out and see how it affects existing German practice and advise the Minister as to the line he might consider taking on the matter.

It is important to realise the great complexity of EEC legislation and the fact that our fellow parliamentarians in Europe have the benefit of a very comprehensive and well-developed committee system which can go into, in much greater detail, any legislative proposal, whether it be European or national, than can this House: a committee can obviously tease out matters much better than a forum such as this in which we are bound by certain procedures. In setting up a committee to deal with European affairs we would be, I think, taking a necessary step to redress the balance vis-à-vis parliamentarians in Europe who have already available to them a committee system, which is, to my mind, a more effective check on the activities of Ministers than is our present procedure here.

It is, of course, vitally important that the committee and the fact that it exists is not interpreted by the Ceann Comhairle, or anyone else, as in any way justifying a diminution of the rights of Members to raise EEC matters here by the existing procedures. Members must have the right to put down parliamentary questions on EEC matters and the right to have a debate on the Adjournment, should that be necessary, on these parliamentary questions. That right must be preserved quite independently of a committee being set up. This is something to which Deputy Flanagan referred; it is imperative that existing rights should not be eroded; it is vital that whatever we do should not be allowed to justify any diminution of existing safeguards.

My amendment is constituted of three parts. So far, I have dealt with one, namely, the provision that:

( ) Any Committee referred to in the foregoing subsection shall have power

(a) to examine and advise a Minister of State and Irish Members of the European Parliament on all EEC Commission proposals prior to decisions thereon being taken by the Council of Ministers, and...

There are two other provisions in the amendment. The one I have just quoted relates to draft proposals which have not been agreed by the Council of Ministers. The other two proposals relate to the implementation of matters already agreed by the Council of Ministers but, in relation to which, it is still open to the Government to implement them in a particular way and the Government are given a certain freedom as to the way in which an agreed decision may be implemented. These are basically directives of the EEC. First of all, my amendment proposes that the decision as to whether or not a particular directive shall be implemented by means of a regulation, a procedure which does not allow for the same degree of public debate, or by means of legislation, which makes for great public scrutiny, shall not be a matter for the Government because, quite clearly, the Government and civil servants, naturally enough, will want only the minimum inconvenience in implementing EEC proposals. They will not want every line of their proposals to be scrutinised here and they will, therefore, tend towards wanting to implement directives by means of regulation rather than by legislation which could be publicly debated here.

The protection in this regard is very weak. The Taoiseach, when introducing the Bill, said that a Minister of State may make regulations for enabling section 2 of this Bill to have full effect and he also said that some directives are more important than others and it may be that it will be found desirable in a particular case to implement by statute Community legislation which might not be directly applicable. It may be that it will be found desirable to implement it by statute and it may be that it will not be desirable to implement it by statute. Who will find it desirable or otherwise? The Minister. He will be the person to decide whether or not he will have the inconvenience of introducing a particular matter here by legislation or merely implementing it by regulation which nobody may possibly discuss at all. He will be the person who will decide whether he himself will have to go to this trouble.

Quite clearly, this is giving this power to an interested party, to someone who will want to minimise personal inconvenience and, because of that, he will reduce the extent to which debate can take place here on the precise implementation of directives, directives in relation to which the Government may have quite a degree of freedom as to the manner in which they will be implemented. My amendment proposes that the decision as to whether or not a particular directive is important enough to warrant implementation by legislation should not be a decision for a particular Minister but rather a decision for a committee of this House. It is important that this should be accepted. Where it is decided by this committee that the matter shall be done by regulation rather than by legislation, there might be, as I said, considerable leeway for the Government as to the way in which they may implement a particular directive. In the case of directives with regard to farm structures the Government may be free not to implement a certain directive at all in certain parts of the country; they might be free to vary the terms of the scheme introduced under the directive in relation to different regions. They might, for instance, be able to give a higher rate of grants for the keeping of farm accounts in the west than they do in the south.

This is something left to the Irish Government. This is not something laid down in Brussels. Quite clearly, the Government will have a very wide area of discretion and, since the Government are responsible to this House, it is important that the way they exercise this discretion should be amenable to discussion in this House. My first proposal is that the manner of implementation should be decided by the committee and will obviously be gone into in great detail. Suppose the committee say that the directive may be implemented by regulation, the present proposal in regard to such regulations is, to my mind, without precedent. The existing procedure for regulations is that any Member of this House may seek to have any regulation annulled within 21 days and, as a matter of right, he is given Government time to have that motion for annulment discussed. That is an important protection of the rights of Members in regard to the exercise of ministerial power in the making of regulations. The Bill before the House proposes to take away that power and, if I understand the provision correctly, there has to be a recall of the Dáil during the recess to have these regulations discussed. There is no provision in regard to the 21 days' motion for annulment. The provision in the Bill reads:

If when regulations under this Act are made, or at any time thereafter and before the regulations are confirmed or cease to have statutory effect, Dáil Éireann stands adjourned for a period of more than ten days and if, during the adjournment, a majority of the members of Dáil Éireann by notice in writing to the Ceann Comhairle require Dáil Éireann to be summoned, the Ceann Comhairle shall summon Dáil Éireann to meet on a day named by him being neither more than twenty-one days after the receipt by him of the notice nor less than ten days after the issue of the summons.

In order, therefore, to get a particular regulation discussed, not only has one to raise the matter during the recess but also — possibly I am wrong in my interpretation here—one has to have a majority of the Dáil behind one. There is nothing in this Bill which says that regulations made under it shall be subject to the normal procedure in respect of annulment, which provides the power for a motion of annulment within 21 days. I believe the original procedure is itself an inadequate protection because it only allows a motion to annul the regulation: you have to reject the regulation in toto or you are not allowed to discuss the matter at all. Many regulations may be brought before the House in pursuance of EEC directives which, while generally all right, may require amendment in regard to specific provisions. Clearly we could not have this House amending those regulations in a way which would be inconsistent with the original directive of the Community. If a Member wished to put down an amendment to modify a particular regulation there would obviously have to be some mechanism for deciding whether or not that amendment was inconsistent with the basic Community directive and therefore impossible.

I am proposing that these committes of the Dáil which I suggest be set up should be given power to decide whether a particular proposed amendment of a regulation is inconsistent with the basic directive and if it is, obviously the amendment will fall. It is important that that decision should not be a matter for the Minister who might have an interest in getting it through but it should be a matter for an organ of the House in which all parties would be represented. It is also important to recognise an important distinction made in this amendment vis-à-vis the existing procedure in regard to regulations, that this amendment proposes that Members of the House shall be free to amend regulations. At present you may not discuss a regulation made unless you are prepared to have it annulled in toto. To my mind, that is not adequate, you must have power to amend it.

So far as I know, that is the position but I see Deputy Haughey shaking his head. I am not experienced in these matters and I may be wrong. It is important that we should discuss proposals made by the EEC prior to a decision being taken on them by the Council of Ministers. It is not much use coming in, as this Bill proposes, and having a global Bill implementing everything that has happened in the past 12 months, or something like that. Such a discussion would be quite unreal, just as unreal as it is at the moment in regard to many regulations which have already gone through. We require a procedure for discussing draft regulations and draft directives before a final decision has been taken so that this House can have an influence on the position ultimately adopted by the Minister at the Council of Ministers when the decision is actually being taken.

Mr. Haughey

It seems to me that the Minister could not possibly accept amendment No. 7 as it would be completely impracticable to put in a provision of this sort. It is clear that as the Community evolves and develops and as we participate in its economic and social programmes and policies— particularly in its economic programmes—there will be occasions when the Minister of the Irish Government would have to make regulations which would become immediately operative. It is not difficult to visualise the circumstances that might make this necessary. They could arise in regard to dumping or animal health or 101 other situations could evolve where it would be necessary for a regulation to be made here by a Minister to deal with an immediate, urgent, emergency situation. I do not think that Deputies could possibly insist on the prior approval of the Oireachtas before any regulation is made.

On Deputy Bruton's amendment I say broadly that I do not think what we are going to do in this area should be done by an amendment of this Bill. We are fairly well agreed that some new machinery, some new procedure, must be devised but I suggest that should be done through the Standing Orders of the House or in some such way by agreement. We should not incorporate in this legislation, as Deputy Bruton attempts to do, details of this new machinery or procedure. That is something we should look at separately on another occasion.

In introducing the Bill on the Second Stage the Taoiseach made a very good point when he said this Bill was more or less confined to broad general principles. He said:

However, the Bill now before the House is a measure of broad principle rather than of detail. It would be inappropriate to distinguish between Community provisions by dealing with some of them and not with others in such a Bill.

That is a good principle to which we should adhere. I would have a number of specific objections to Deputy Bruton's proposal as he has spelled it out in this amendment but it should be sufficient at this stage that the amendment should not be pressed particularly in view of the fact that the Minister gave an undertaking yesterday that some such machinery will be provided.

Mr. Tully

I said I did not want to comment on Deputy Bruton's amendment because I was not quite sure what was intended until he explained it. It is rather a pity he did not treat my amendment in the same way. He referred to the large number of regulations. When the Minister was replying to the Second Reading debate he said their estimate "without fixing it because it is something we know we do not know, is that once you get over the number of regulations a Minister requires now for the period of entry, an average year would see about 20 ministerial regulations brought to this House". These are the Minister's words as reported at column 254, volume 263 of the Official Report. We are talking of about 20 regulations a year and many of those need not come before the House, only those which are challenged. I assume this is the way our amendment would operate; that is what we intended.

For a few minutes I thought Deputy Bruton was becoming mixed up in his Ministers. We have the Ministers of the Council of Europe of whom we have one here, a Commissioner. We would not have a Minister here. The Minister we are talking about who would be introducing these regulations would not have got his instructions in the Council of Ministers.

Mr. Bruton

He would be a member of the Council.

Mr. Tully

Yes, but he might not be the person responsible for introducing the regulation.

Mr. Bruton

I think he almost certainly would.

Mr. Tully

He might not. I see no reason why even Community legislation should not be discussed by everybody who has an interest in it or can influence it in any way before it is finalised. I do not think we should reach the stage where, if we did not agree with what the Minister was doing, there should be some peculiar committee which would have the effect of nullifying it. The right to nullify or to amend must rest with the House.

Mr. Bruton

The Deputy may be misunderstanding my amendment. The amendment proposes that draft regulations that have not yet been agreed could be discussed and that in regard to the other regulations that they would decide (a) whether or not they should be implemented by regulation or legislation and (b) whether or not an amendment put down in the House to a particular regulation was in order as regards compatibility with the basic directive from which the original Government regulation sprung.

I am not proposing in any way to delegate the powers as regards the acceptance or rejection of the final regulation which is made by the Government. That clearly rests with the House. But, a committee would obviously be able to go into the matter in greater detail.

Mr. Tully

Again, I have difficulty in accepting that that would be possible. I believe it is ludicrous to suggest that regulations of the kind described here which may have a far-reaching effect on the country should be allowed to stand for up to two years before they would even be commented upon in the House. Therefore, I want to tell the Minister that I propose to press this amendment to a division, if necessary, in order to ensure that the Minister or the party does not get away with a proposal which will leave us in that position. It is bad enough that Estimates are discussed in the spring when the money has already been spent. It is now suggested that up to two years after a regulation has been made we should be allowed to talk about it in the House. My party will not agree that this is the way it should be done. If the Minister says that he agrees that this is not the right way and that he is prepared to propose something else on Report Stage, then we can have another look at it. As it stands, I would have to tell the Minister that we would have to oppose the section.

Mr. O.J. Flanagan

An extraordinary change has come over the House in 30 years. In 30 years all of us experience inward and outward change. It may be that our intellect grows dimmer. Can one imagine the reception that a proposal of this kind would have had in the House 30 years ago? Can one imagine the reaction of the House 30 years ago to any effort to diminish or to surrender the right of Parliament to discuss and to decide matters of national, international and local concern? Deputy Vivion de Valera last night maintained that this Parliament is the sovereign authority. In my view our entry into the EEC takes from this Parliament the sovereign right to legislate and the right, authority, power and supremacy of Parliament is diminished by our entry into the EEC.

One must ask what was the purpose of the Labour and Fine Gael Deputies in putting down these amendments for the consideration of the House. Is it not right that Parliament should know what is going on in Brussels? Is it not right that Parliament should be consulted in relation to matters concerning agriculture, fisheries, wages, prices, industry? In the event of a regulation being made which may affect industry, trade unions, workers, which may bring about a credit squeeze or be responsible for inflation or deflation, which may have some bearing on our agricultural policy, there would be no point in discussing that regulation two years after it had been made. Parliament must be in a position to express an opinion and to guide our Minister in Brussels. Public opinion can only be expressed through Parliament and the opinion expressed by Parliament will be the guideline for the Minister in acting on behalf of this country in Europe.

It is right and reasonable in any democracy that Parliament should have the right to express an opinion in regard to any order which may be made in Brussels affecting this country. How can a Minister subscribe to an order without knowing whether the order is welcome or not in his own country and whether its effects will be in the public interest? Or, is this House to give Ministers a licence to make orders in Brussels as they see fit? Now that we are entering the EEC the Members of this House must maintain the right of this Parliament to discuss and to express an opinion. We cannot change the proceedings in Brussels but we have the right to criticise and we should have the right to debate every order and every regulation and, as has been pointed out, there is no point in discussion when the order has been made and is in force and is part of the law.

It has been suggested that all these regulations and orders should be debated in committee. If, as we are told, approximately only 20 of these orders and regulations will be made per year, and many of them will be just noted by the House without discussion, assuming that five of them are of vital importance, cannot the House devote ten days to them? I am sure two days for each of the five orders would be sufficient for Deputies to express their opinions on them and would either hoist the green light of clearance or the red light of danger to the Minister. It has been suggested that it would be impracticable for the full House to debate approximately 20 regulations per year.

Mr. Bruton

The drafts would be more numerous.

Mr. Tully

The House would not have to give effect to them anyway.

Mr. Haughey

Would not the ordinary rules governing regulations in the House apply to these as well, apart from specific provisions in the Bill? Would not our ordinary Standing Orders apply to regulations?

Mr. Tully

No. This precludes them.

Mr. Haughey

The ordinary Standing Orders of the House would apply to these regulations.

Mr. Tully

I do not think so. That is specifically excluded by the Bill.

Mr. Haughey

Where?

Mr. Bruton

Subsection (2) of section 4.

Mr. O.J. Flanagan

If the orders and regulations, either in draft form or as presented by the Minister, are to be examined by a committee of the House, I suggest that this puts certain Members of the House in a superior position to that of other Members.

Mr. Haughey

Hear, hear.

Mr. O.J. Flanagan

That is wrong in principle. There are certain Deputies who look upon themselves as specialists in agriculture. There are certain Deputies who look upon themselves as trade union specialists, who speak for the workers and who are entitled to speak for the workers. There are Deputies who have legal training and who speak in high terms on constitutional and other law. There are Deputies who are qualified to speak on industrial relations and on industry in all its aspects. Then there may be the Deputy like myself who chances his arm and speaks on all these subjects, from time to time with a greater degree of intelligence than the specialists.

I would never have a snowball's chance in hell of being appointed to a committee to deal with EEC matters. I want to protect my rights as a Deputy. I want Members of Parliament to retain, so far as possible, their right to speak on matters relating to the EEC. I am not alluding in any way to my own party but we have in every party what is known as the lap dog Deputy who will be appointed to these committees whether he qualifies or not. That is not in the interests of Parliament. I am not referring to my own political party; I am referring to all political parties. No matter how a Deputy may have sounded public opinion, if a committee is appointed to look into these rules and regulations, if he cannot get inside the committee room, he is in an inferior position to that of the Deputies appointed to the committee. That is wrong. It will prevent the free and proper functioning of Parliament. We must preserve Parliament. If we are to preserve Parliament we cannot cut out some Deputies and put others on committees.

If the House goes into committee that is all right but, if a select committee is appointed to deal with all EEC matters, I will feel a very small boy if I have to ask the committee to allow me to make an oral or a written submission. I will be degrading and lowering my standing as a Member of this Parliament. That goes for every other Member of the House who is a backbencher. We must preserve our right to speak. We must preserve our right to represent our people. We must preserve the right to make known the views of our constituents. We cannot do that if we cannot get inside the door of the committee room, if we cannot get into the secret chamber to do it. The only place we can do that is in this House.

I have always cherished Parliament. I have always cherished the right of people to speak in Parliament. I have always thought that it was the greatest possible exercise in democracy that, no matter what standard of intelligence a person had, if he came here as an elected representative of the people, provided he kept within the rules of order, no one could prevent him from speaking. That is the great essence of democracy. That is what democracy is all about. If we are to have privileged Deputies who are lucky enough to reach the dizzy heights of being appointed to a select committee and in a position to express their views that will be all right for them, but what about the Deputy who does not attain those dizzy heights? How will he express an opinion? Will he have to go cap in hand and ask to be allowed to give evidence before a committee of his own colleagues, Deputies elected in the same way, and given the same rights by the people? That will make second-class Deputies. It will lead to a lower standard of Deputy. It will be a reflection on him in regard to all aspects of social, economic, financial, agricultural and industrial matters.

The Deputy outside the committee cannot speak. He will not be in the know. He will be a second-class Deputy. The lap dog Deputy who is appointed to the committee will have all the inside information. In the interests of democracy I say that is not right. Deputies have, and should have equal rights. The day this House prevents all Deputies from sharing jointly in the making of laws, in the expression of opinions, will be a sad day for this Parliament and for democracy. We should cherish our rights. They are going away slowly from us. They are dwindling before our very eyes. I would feel seriously agitated by any steps taken to restrict Members of this Parliament in the exercise of their official duty to speak on behalf of the people they represent.

Strangely enough, I find myself in agreement with Deputy Haughey. There was a time when both of us could speak from the front benches. I do not think either of us could be farther back now—one of the changes of the past 30 years. I agree with him when he says that a day or two could be set aside by this Parliament solely for discussion of EEC matters. They involve the whole Parliament and if any Deputy says he does not understand these matters, that they are documents of a highly technical character, there will be no obligation on him to attend.

But at least Parliament should facilitate Deputies who have an interest in such matters to come in to join in a general discussion. The Minister for Foreign Affairs last night or this morning spoke about certain confidential orders and regulations. We quite understand that some of the EEC business is of a confidential character but in my 30 years in the House, even during the last war when we had to discuss censorship and the security of the State and matter of supplies, there has never been a time when Parliament insisted on discussion behind closed doors and barred windows. Are we now to have the spectacle of Deputies hooded or disguised entering a room and behind closed doors secretly discussing matters which will be of vital importance to the community? These matters will affect the lives of all of us and I do not think we should consider for one moment that we should resolve ourselves into moonlighters, legislating in the dark, behind closed doors.

That is why I say that even if there are to be 30 decisions taken, 30 debates, in the course of a year, these should occur openly and above board. Do not let us legislate behind closed doors. I cannot understand the type of regulation or order, unless it involved important security matters, which would demand that we do this. We are living in modern times when efficiency is being sacrificed for speed. In an elected assembly like Parliament, however, there cannot be speed at the expense of efficiency. Therefore, there is no need for hush-hush debates or discussions on these orders and regulations: they must be debated deliberately in open Parliament, having been presented by a Minister who must explain openly the entire circumstances involved.

I have no serious axe to grind with those who advocate the appointment of committees beyond saying that it is wrong to have what I might call a selection of Deputies. It is wrong to create a situation in which some Deputies would be looked on as being superior to others in matters affecting EEC membership. That would be to diminish the authority, the right and the power of Parliament. Members of this House are all of equal standing in so far as they are concerned with public business and that is why I say that all orders and regulations that have to be discussed must be discussed openly in this Parliament before they are sent to Brussels for approval.

Progress reported; Committee to sit again.