European Communities Bill 2006 [Seanad]: Second Stage (Resumed).

The following motion was moved by the Minister of State at the Department of the Taoiseach, Deputy Treacy, on Thursday, 8 February 2007:
That the Bill be now read a Second Time.
Debate resumed on amendment No. 1:
To delete all words after "Dáil Éireann" and substitute the following:
"Dáil Éireann declines to give the Bill a second reading on the following grounds:
(a) 50 years after foundation of European Economic Community, the process of closer European co-operation is becalmed by reason of citizens’ perception across Europe of a lack of democracy in the operation of the EU;
(b) Such concerns as to the lack of democratic scrutiny were critical in the defeat of the first Nice Treaty referendum and in the response to that result, including in the establishment of the National Forum on Europe;
(c) The present law, under the European Communities Act 1972, requires approval by the Oireachtas in the form of primary legislation of all proposals to create indictable offences to implement European law;
(d) The Bill would bring about a major transfer of power from the Oireachtas to Ministers by allowing Ministers to create indictable offences by regulations, rather than through the introduction of legislation;
(e) As directives are binding only as to the result to be achieved, and leave to the national authorities the choice of form and methods (under Article 249 of the EC Treaty), the implementation of a directive is not an automatic or rubber-stamp exercise and involves important policy choices as to form and methods, and it is in the interests of democracy that such important choices should, in serious matters, be made directly by the Oireachtas and not by Ministers through the medium of regulations;
(f) The Bill would, if implemented, allow such policy choices as to form and methods to be exercised by Ministers, instead of by the Oireachtas as at present, in cases where it is proposed to create indictable offences;
(g) Oireachtas scrutiny after the event is not an adequate substitute for the power to make the decision in the first instance, which is the power currently held by the Oireachtas in cases where it is proposed to create indictable offences;
(h) The Bill is therefore a significant dilution of democracy at a time when concerns as to lack of democracy have shaken citizens’ confidence in the EU;
(i) The Bill is primarily motivated by a short-term view of administrative convenience; the State is not obliged to introduce the Bill by EU law and is free to withdraw the Bill without infringing EU law.’’.
—(Deputy Costello).

I wish to share time with Deputy Harkin.

Is that agreed? Agreed.

This Bill represents an affront to democracy. It allows Ministers to enact European legislation without coming to the floor of this House. That is bad for Europe, Ireland and democracy. All these statutory instruments and ministerial regulations should be brought before this House for debate before becoming law. It is not right that regulations, which often dramatically change the way in which this State interacts with the public, are brought in through the back door. These regulations should come under the scrutiny of the House. European legislation should not be brought in by the back door. It is an affront to democracy that the Minister would try to rush through legislation to effect this change.

We should enact European Union legislation but we should do it right. I cite the example of the Aarhus agreement, which is based on ensuring that the public's voice is heard. We are still waiting for the Minister for the Environment, Heritage and Local Government to properly enshrine the provisions of that agreement in Irish legislation. Surely the public has a right to know about it. Surely the Legislature has a right to give its views on proposed regulations and the incorporation of European statute into Irish law. I ask that the Minister of State ensures that this House and the people are part of that process and that we do not simply rubber stamp European laws and bring them in through the back door.

I stand here with a heavy heart because we should not be having this debate. There are a number of reasons that I make this point. What we are trying to do today is to solve a legislative problem using administrative measures. Bluntly speaking, the Government has found itself in a hole but instead of trying to fill it in, it is continuing to dig.

We should not be having this debate because what we are attempting to do is to override the crucial role the Oireachtas has in overseeing the transposition of EU legislation. We will create a minefield of uncertainty by introducing retrospective legislation. That is always a risk, but taking account of the timespan that is involved, some 34 years, and the sweeping measures we are giving to Ministers, it is a huge risk which is too big to take.

We should not be having this debate because it will further alienate people from the EU, on which I will elaborate later. It will give ammunition to those who oppose the EU for any number of reasons, good and bad. As the Minister of State is aware, I am very supportive of the EU project and am proud to be part of it. However, it does not mean that we get everything right.

There are positives and negatives to being part of the EU. Many of the benefits have already been outlined in this debate. While I do not want to repeat them, I will mention one or two to balance what I have to say. Ireland has benefited greatly from joining the EU. When I went to Europe, I was surprised at how colleagues, particularly those from some of the new member states, look to Ireland. They see Ireland as the model of good practice.

We received in excess of €50 billion from the EU and used it well. We invested in our education system. The regional colleges were built in the 1970s and they subsequently became institutes of technology. That was the start of the expansion of third level education here, which enabled us to have an educated workforce who helped to create the Celtic tiger.

I am old enough to remember back to the mid-1970s when what the rent landladies charged students was dependent on the grant aid from Europe. The impact of that money not only allowed us to have third level graduates who fuelled the Celtic tiger, but it also had a huge impact on the local economy. We used EU funds to build up our economic infrastructure and to support our farmers and community groups, which was a useful way of using them. We are still using that money to fund child care provision — the list goes on.

While EU funds were important, the most important element was access to the Single Market. That was one of the factors that helped to fuel our inward investment. Companies that located in Ireland had access to the European market. Ireland has an export figure of 2.5% for such worldwide services. That gives us an idea of how important it is to have access to the market.

The benefits derived from the European Union have not just been economic. Most of our equality legislation has been driven by the Union. When the concept of equal pay was brought forward, we tried to obtain a derogation but failed. Most of our good environmental legislation has emanated from the European Union. We cannot claim that all EU legislation has had a positive impact, but sometimes that is our own fault. I will not go into the details of the nitrates directive as it has already been mentioned in this and in other debates, but we often have to look at how we did not act. It is the main reason we find ourselves in this position. Sometimes it is our interpretation of EU legislation that causes problems for many, especially in the agriculture sector.

I wanted to make these positive comments about the European Union to underline the positive aspects of EU membership but also to acknowledge some of the difficulties that can arise. There are very few in this country who would stand up and say we should not have joined the European Union, or that we should leave if we have the opportunity to do so. If the proposed constitution was in place, that latter option would be open to member states. Many have serious issues with the European Union but most would recognise that, on balance, we are part of a project that has ensured peace and stability in Europe and that has enabled old enemies to work together for the common good. This has brought considerable benefits to Ireland.

Many use words such as "eurocrats", "plutocrats" and "technocrats". They talk about late night discussions and decisions in smoke-filled rooms as if this was how we go about our business. It is not. Proposed legislation comes from the Commission. Many will say its members are unelected but each country has a Commissioner at the table. Even before draft legislation is brought forward, there is a consultation process. Since I was elected to the European Parliament, I have been involved in alerting stakeholders and those interested in legislation coming from the Commission to the fact that there is a consultation process, of which they can be part, even before legislation comes from the Commission. It then goes to the European Parliament which amends it, often substantially. The Bolkestein, or services directive, was substantially altered by the European Parliament, especially the country of origin principle. What left the Parliament was very different. That is an example of where we had real democratic accountability. Legislation must then go the Council of Ministers and back to the Parliament until we reach what is known as a common position. The Minister knows all of this, but I wanted to outline the position, as many statements have been made about how we draft European legislation. The Parliament must reach a common position on about 70% of legislative measures. To say eurocrats and technocrats are responsible for all legislation coming from the European Union is not correct. When we reach the point where legislation is enacted, it is up to each member state to decide how it will implement it. The European Union requires an outcome, but the mechanism used is at the discretion of each member state.

That brings us to the issue we are discussing. What happens at member state level? How will we use our structures to implement EU legislation? What safeguards will we put in place and what checks and balances will we include? I do not come from a legal background. I was a humble maths teacher before I was elected to the Dáil. However, I have read the Bill and the explanatory memorandum, listened to some of the debates in the House and read the Seanad debates. I have spoken to some people whom I consider to be experts in European affairs. My personal conclusion is that there are serious problems with the Bill. If we were to have a referendum on this matter, would the people vote in favour of the Bill? My instinct is that 90% would vote against it. Perhaps the people and I are wrong, but I do not think so. This is the yardstick at which the Minister of State should look. How would the people of Sligo, Leitrim, Mayo, Galway or Donegal vote if this issue was put to them? Would they trust any Minister to do what is outlined in section 2 of the Bill? It states:

(a) make provision for offences under the regulations to be prosecuted on indictment where the Minister of the Government making the regulations considers it necessary for the purpose of giving full effect to a provision of the treaties governing the European Communities or an act adopted by an institution of those Communities, and

(b) make such provision as that Minister of the Government considers necessary for the purpose of ensuring that penalties in respect of an offence prosecuted in that manner are effective and proportionate, and have a deterrent effect, having regard to the acts or omissions of which the offence consists, provided that the maximum fine (if any) shall not be greater than €500,000 and the maximum term of imprisonment (if any) shall not be greater than 3 years.

In other words, if I were to ask the people of Sligo or Leitrim if they would allow a Minister to create indictable and summary offences in order to comply with European law, would they say yes?

Looking at the line "having regard to the acts or omissions of which the offence consists", would they trust any Minister or Minister of State with such a power? I think they would reject it overwhelmingly. It is simply too much power to vest in one Minister. They would reject the provision to make this power retrospective without oversight from the Oireachtas. Many do not know we are having this debate and do not know its outcome or impact. The people elect us as Teachtaí Dála, messengers to the Dáil, to look after their best interests. They do not elect us to rubber-stamp a decision made by a Minister, but to have an involvement in the process. The Minister of State is denying us that right, but he is also denying the people their right, which is the critical issue.

Do the people really know what is going on? If they did, would they support the Bill? I know the Attorney General has advised the Minister of State to take this route. As an aside, Attorneys General do not always follow their own advice, as is the case with the Minister for Justice, Equality and Law Reform. The Attorney General's advice may solve the immediate problem caused by the Supreme Court decision, but what are the implications in the long term? Has the Minister of State considered the sidelining of the Oireachtas and all that will entail? Has he considered all the possibilities that may be covered by introducing retrospective legislation going back 34 years? Has he considered the possibility of abuse or misuse of this power by a subsequent Minister? Has he given his opinion that this is fully constitutional? Even if he is sure that it is, has the Minister of State forgotten the precautionary principle? Will he accept some of the amendments and put in place some safeguards to ensure the checks and balances work? That is necessary if the Minister of State is to be sure any legislation enacted on his watch will stand the test of time. I understand the need to deal with this situation — we must deal with it — but I think the Minister of State is compounding mistakes which have already been made. He is trying to push a huge mess under the carpet by giving sweeping retrospective powers to Ministers to deal with problems by getting them out of the way and moving on. Somebody will trip over the pile of rubbish that will remain under the carpet.

The Minister of State spoke about putting transparent and effective procedures in place. These procedures may initially seem effective because they will get rid of the problem, but they will not be transparent by any stretch of the imagination. They will not even be visible — we will not be able to tell that the new powers are being used. The Minister of State said the European Union will not work unless member states implement community law and decisions in a reliable and consistent manner. He gave the impression we are trying to ensure in this Bill that the rules are the same for everyone, as they must be. However, I can give the House a list of penalties which are different in various EU member states. I do not have time to mention them all, but I will highlight one of the inconsistencies on which this legislation will have no impact. If one is found guilty of falsifying fisheries control documents in the UK, one will be fined €132,000. The equivalent penalty is €4,500 in Spain, €400 in Portugal and €270 in France. I do not know what it is in Ireland, but perhaps the Minister of State can tell us. I have a list of penalties, for breaching various rules and regulations, which differ substantially in various EU countries. I am aware of an offence for which one can receive five years' imprisonment in one country, but no penalty in another country. It is not true to suggest this legislation will make all EU countries implement penalties in the same way.

The Minister of State said this Bill represents a response to the serious implications of the Supreme Court judgment, which requires this country to update the way it uses secondary legislation to give effect to EU obligations under Irish law. He told us it is that straightforward. If the Bill is a response, it is an ill-judged response. This measure is not that straightforward. It is not just a question of updating the way we use secondary legislation. This Bill makes some fundamental changes in that area. It will allow sweeping retrospective legislation to be introduced.

When I discussed this issue with Mr. Pat Cox, a former President of the European Parliament, he mentioned that he was able to introduce an inter-institutional agreement, running parallel with a process called comitology, to allow for review, stand-still and call-back. In other words, he negotiated the right of the European Parliament to call a particular issue back if it feels there is a problem with it. I am asking the Minister of State to do the same thing. He should give this House the right to engage in a process of review, stand-still and call-back. If he does that, he will be taking a reasonable and balanced approach to this legislation.

I would like to share time with Deputy Ring.

Is that agreed? Agreed.

The European Communities Bill 2006 is very bad because it is subversive and it undermines the primacy of the Oireachtas. People have given their lives to protect the primacy of this Parliament, which is being undermined by a Bill that the Government suggests is simply a technical measure. This legislation is being used as a Trojan horse to undermine everything the Members of this Parliament stand for. The Government tried to sneak in what it claimed was a small technical Bill, but is actually of utmost importance to this House and the citizens whom we, as elected officials, represent. The purpose of the Bill is to amend the European Communities Act 1972, which allowed for the transposition of specific EU law into Irish law by means of statutory instruments.

I remind the Deputy that I will call the Minister of State to reply at 2.15 p.m.

I am not too happy with the Government's decision to guillotine this Bill.

The House has decided to bring the debate to an end at that time.

The House should have ample time to consider this serious Bill, which proposes to give Ministers the right to transpose EU regulations and directives, including laws that carry penalties of heavy fines and imprisonment, into Irish law. This legislation, which is extremely significant and extremely flawed, is even more exceptional because it will allow Ministers to enact laws retrospectively. Given that the Government has shown no willingness to consider amendments to the Bill, and considering how unacceptable the legislation is in its current form, Fine Gael has no option but to reject it as seriously defective and, therefore, to vote against it. Fine Gael will seek to amend the Bill substantially on Committee Stage, although I wonder how useful my amendments will be given that they are sure not to be accepted.

The Bill highlights a number of significant problems with the Government's lackadaisical approach to the adoption of EU directives, not least of which is the subversion of our democratic process. Section 3 proposes to give Ministers the right to implement EU law by means of statutory instrument, thereby amending domestic legislation without the consent of any Member of the House. Such action would completely remove the Members of the Oireachtas, who are representatives of the Irish nation, from the democratic process. If this legislation by stealth is accepted, the Government will be able to subjugate the power of the Oireachtas to the whim of an individual Minister. As the scrutiny of ministerial statutory instruments is not as rigorous as the scrutiny of proposed legislation, it would be irresponsible to give Ministers the authority to validate retrospective criminal legislation without an adequate amount of inspection.

This Bill needs to be re-examined and amended. It is the responsibility of my party to demand that the Bill ensures that all statutory instruments — those deriving from EU legislation and others — are laid before the Oireachtas for 21 sitting days to allow any Member to review, and if necessary, challenge their provisions. We propose that statutory instruments will become law only if no such challenges are issued. This proposed amendment, which is necessary, also seeks to remove the retrospective effect of the legislation.

The Fine Gael Party, which has always supported Ireland's role in the European Union, will continue to support that role in the years to come. Significant benefits have accrued to Irish people from this country's membership of the EU. Certain improvements which have been driven by the EU have been extremely beneficial to the nation as a whole. Although the implementation of EU directives has made Ireland safer and more prosperous, this country continues to lag behind other member states in the timely adoption of such directives. The method by which directives are adopted has been consistently defective under the stewardship of this Government.

I am currently the Chairman of the Oireachtas Sub-Committee on EU Scrutiny, which is severely understaffed and continuously overworked. It fulfils an extremely important role on a shoestring budget. It is time to recognise the sub-committee's importance, and the magnitude of its work in terms of Ireland's membership of the EU, by putting in place new arrangements to increase its staffing and funding. Given that the sub-committee met 16 times and examined 552 documents in 2006, it should be obvious, even to the Minister, that better arrangements are needed for the examination of so many important documents in such a short period. I do not know how the officials who work behind the scenes to scrutinise and examine every document that is referred to the sub-committee are able to bear their workload. The majority of the sub-committee's work — 69% of it in 2006 — involves examining documents relating to regulations, decisions and directives. Some 56 Common Foreign and Security Policy measures were considered that year, including the application of restrictive measures against Burma, Zimbabwe, Sudan, Liberia and Côte d'Ivoire and against suspected terrorists for their involvement in the assassination attempts on Belorussian officials and the former Lebanese Prime Minister, Mr. Rafik Hariri. Other documents which were considered dealt with steps to combat the proliferation of nuclear and chemical weapons. On issues of such importance we must not simply hand over absolute authority, retrospective or otherwise, to one Minister.

Of the 552 documents considered in 2006, a total of 98 or 18% were singled out as having significant implications for our country and as warranting further scrutiny. These were subsequently referred to the appropriate sectoral committees. Documents of such impact cannot be allowed to slip through the fingers of the understaffed sub-committee if further scrutiny is a necessity. We simply must improve the method by which these directives are reviewed; it would be nothing less than complete negligence to do otherwise.

It is our responsibility, on behalf of our country, to scrutinise European Union proposals to ensure we achieve the maximum benefit from them and are not hampered by laws contrary to our national interests. To simply allow Ministers to ratify them with a wave of a hand is not in anyone's best interest. A dangerous gap exists between the administration of the EU and the common European citizen. Rather than taking steps to bridge this gap, and make the law of the EU more accessible and pertinent to the Irish citizens and the democratic institutions that they have founded and protected, this Bill and the method by which European directives will be transposed if it is enacted, will only serve to alienate our nation further from the European Union and will give hostages to fortune to the enemies of the Union.

Fine Gael has always promoted Ireland's membership in the European Union and will continue to do so. We actively recognise the good things that have been brought about in Irish society from EU directives and our membership in the Union, namely, the important human rights and anti-discrimination legislation, the ability to work and travel in any EU country, strong industrial guidelines that protect our environment and codes for workers' safety that protect our national health.

However these benefits do not simply fall out of the sky. It is important to recognise that these benefits flow from our transposition of EU directives into domestic law. This is a matter of such great importance that it deserves more than the cursory lip service Ministers seem content to give it.

It is not our intent to discourage the adoption of EU directives. They have proven to be significantly beneficial to our nation and to our way of life. I regret that in discussing such important and dangerous legislation the Government is effectively gagging the Opposition. This legislation will undermine the supremacy of this Parliament.

I am disappointed Members have not more time to speak on this very important Bill. I listened to the contributions from Deputies Allen and Harkin. The Government should consider withdrawing this legislation as it is dangerous, devious and bad. It is bad for Irish citizens and bad for Europe. If this was put before the Irish people, they would reject it. This is the reason Irish people are becoming cynical about Europe. Ministers could be making decisions about people's lives and on whether people should be prosecuted. This is the worst legislation I have ever seen coming through this House. As somebody who has never been pro-European, this will not do anything for the European Union because the people of this country will see this as European legislation dictating to this Parliament.

We are a few weeks away from a general election. I question whether we need a general election, a Dáil or an Assembly, because we have no power in this Assembly any longer; we are being dictated to.

Deputy Harkin referred to the European Commissioners. They are selected for office but in a true democracy they would be elected. We have too many people who are selected such as Government officials and county managers. At least Members in this House are elected by the people. Deputy Harkin has been elected by the people to serve in Europe and for this I respect her. I do not respect commissioners because they are selected by governments.

This is serious business and the people of the country do not know what is happening. I can tell the Minister of State there will be future referendums on Europe and we will spell out what is going on in Europe. We will spell out to the people what is happening at European level and what is happening here in this House.

I will finish as I started by questioning the need for this Dáil. The people who died in this country in 1916 and in 1921 would turn in their graves if they knew that the great Fianna Fáil Party was selling this country out to Europe and that we no longer have any power in our own Parliament. Fianna Fáil will be out at Easter marching up and down. The Taoiseach will be marching up and down with the green flag behind him but the Government has sold us out to Europe.

Is cúis áthais dom bheith ar ais arís le freagra forleathan a thabhairt do na h-oráidí uilig a chualamar inniu, an tseachtain seo caite agus ar feadh coicíse. I thank all Deputies who contributed to the debate.

Given the national importance of our membership of the European Union it is entirely appropriate that both Houses have had a full opportunity to consider in detail the different issues raised by this Bill. I look forward to further debate on Committee Stage at the Select Committee on European Affairs. However, many of the criticisms levelled at this Bill during this debate have been quite unwarranted. The picture painted by Opposition Deputies last week and today of individuals being imprisoned at the whim of Ministers for trivial breaches of EU law, was completely over the top. Ministers are not in the business of fining and imprisoning people——

They did so yesterday.

——nor have they any role in these matters, which are clearly reserved for the courts under the Constitution.

This Bill provides that a Minister will only have a limited legislative power to make provision for indictable offences in regulations made under the 1972 Act. This will only be done when a Minister fully considers that it is necessary to do so in order to live up to our EU treaty obligations. This Bill makes it plain that the penalties must be proportionate. In other words, serious penalties will only be provided for in cases of serious breaches of EU law.

Where it is necessary to provide for prosecution on indictment, the Minister must operate within the parameters set down in section 2. This provides for a maximum fine of €500,000 and a maximum term of imprisonment of three years on conviction in the Circuit Court, a higher court. Such penalties would only be imposed by a court after a fair trial and not by the Minister or his or her officials, nor the European Commission, nor anyone else for that matter, whether they be in Opposition or Government.

Our EU membership means that we are bound by our treaty obligations. These require us to have effective, proportionate and dissuasive penalties, for serious breaches of European Community law. This is what this legislation seeks to achieve. The Government is not seeking to persecute farmers, fishermen, pharmacists or anyone else, as Deputy Denis Naughten implied in his speech and later in his outrageous and false press releases. Law-abiding people have nothing to fear from any law, whether that it be domestic or EU law.

On a point of order, the Minister of State should withdraw the word, "false". He may not agree with the contents of the press releases but to call a Member who is not here today a liar is unwarranted.

I have not objected, criticised or interrupted anybody.

I ask the Minister of State to withdraw that statement.

It is not a point of order.

On the other hand, Irish consumers and businesses have everything to gain from a properly regulated Single Market within the growing European Union.

I was surprised and disappointed at the levels of negativity displayed towards the EU during the debate in this House last week and today by Members belonging to parties that regard themselves as pro-European. It ill behoves Irish public representatives to make cheap jibes about the alleged machinations of unelected Brussels bureaucrats. Some of the most outstanding Irish people have served our country in Europe at the highest level. Just because they were not elected to office does not mean they did not do a good job or were lacking the necessary intellectual capacity and skills to do so. This type of misinformation gives succour to the small minority in this State which would prefer us to sit in splendid isolation without any of the benefits that 34 years of EU membership have brought, and continue to bring, to all our people both North and South.

There was an implication running through some of the contributions to the debate that EU law is something foreign to Ireland and is imposed on us from the outside. As Deputy Harkin said, nothing could be further from the truth. We are fully involved in the elaboration of EU decisions.

These are taken in accordance with clear rules laid down in the European Union treaties, the provisions of which the Irish people have repeatedly endorsed by referendum. EU law belongs to us, just as it belongs to each and every member state of the EU. It is true that EU law is adopted in a different way from national laws and that Ireland only has a certain number of votes at the Council of Ministers and in the European Parliament. This is the way the European Union must operate with 27 member states. We cannot, however, demand the right to second-guess decisions taken in Brussels just because they do not ideally suit us all the time. We benefit hugely from EU membership and must be willing to give effect to EU decisions when they are adopted with full Irish involvement. All European laws are beneficial to all of our citizens. In different ways and on different occasions, these EU laws are available to each individual Irish citizen to protect and sustain their individual rights where and when necessary.

Let us debate the issues, by all means, but we ought to do so in a calm and rational manner, without the scare tactics we have heard from some surprising quarters during this debate. I reject the suggestion by Deputy Costello that the Government is not acting in a transparent manner. We published this Bill three months ago and have allowed plenty of time for debate.

As regards the comments of Deputy Ó Snodaigh, I must correct him on a number of points. I never said this was an innocuous Bill but that it was a short, technical Bill with an important national purpose. However, I would have expected a better appreciation of the basic rules which we agreed, as a nation, in 1972, when we took on the responsibilities of EU membership. This Bill has nothing to do with creating an EU super-state and most certainly does not amount to acoup d’etat. This kind of gross hyperbole does no service to the cause of rational debate on European issues to which I am personally committed, as is the Government in which I have the honour to serve, and to which most practical and fair-minded public representatives are committed also.

I appreciate Deputy Finian McGrath's reference to 1916, a reference also made by Deputy Ring. I share Deputy McGrath's respect for the founding fathers of this State, as we both share a common heritage. However, republicanism, nationalism and support for the EU are not incompatible. This is the reason the Irish people voted overwhelmingly for EU membership in 1972 and agreed to the necessary constitutional changes which this entailed. Since then, despite all the alarmism of certain politicians, Irish independence has not been compromised or eroded. EU membership has acted to enhance our independence, enabling us to achieve and cherish national ambitions. Indeed, we are stronger today, culturally, politically and economically, than at any time during the history of this State.

EU membership has underpinned our economic success and ended the scourge of mass emigration. Our national language got official recognition within the EU last month, after 34 years of EU membership. This shows both the diversity and democracy of the European Union and, as a republican democrat, I fully subscribe to that ethos.

Deputy Boyle and others suggested the Bill in some way undermines our democracy. Such claims ignore the fact that EU law is adopted with the full involvement of elected politicians and the European Parliament who, between them, have the final say in what is agreed in Brussels. Contrary to the impression given in some contributions, the European Commission merely makes proposals. It is also responsible for overseeing the implementation of EU law. It does not take decisions, make laws or impose anything on the member states. It is a vehicle of service to the entire European Union, with full responsibility for the effective administration of the Union.

I want to correct Deputy Connaughton and put on record the fact that no amendment was tabled to this Bill by the Opposition in the Seanad to enhance the role of the Oireachtas.

We will change that.

I also assure Deputy Connaughton that the procedures set out in this Bill in no way affect the requirement in our Constitution regarding future referendums in the State.

Contrary to what Deputy Durkan and others in his party claimed during this debate, there is no intention to increase executive power at the expense of either of these Houses. There is no sidelining of the Oireachtas. Once this Bill is passed, all EU legislative proposals will continue to be seen by the Oireachtas at the scrutiny stage. Given the vital national importance of our EU engagement, we value the broad consensus on EU issues that has existed in this House over the years. There is no interest to be served by turning EU affairs into a divisive political issue, yesterday, today, tomorrow or at any time.

Deputy Coveney alleged a cloak and dagger approach by the Government. I reject that charge entirely and I am disappointed a Member with a dual mandate in Dáil Eireann and in the European Parliament would make such an allegation. I also reject his charge that the Bill affects the credibility of the European Union in Ireland. The Bill in no way cuts across the existing arrangements in the Oireachtas to scrutinise draft directives and regulations. It is up to the Oireachtas itself to work the scrutiny system and make its views known.

Deputy Deasy claimed that, in his role as Chairman of the Joint Committee on European Affairs, he should have been consulted about the Bill before it was brought into the House. I am not clear what he means. This Bill was published on 1 December 2006, before the Seanad debate. It was included in the Government's legislative programme for the last session and again this session. Deputy Deasy has had every opportunity to raise the Bill with either myself or the Minister, Deputy Dermot Ahern, in the meantime. He states his committee is not divisive and has never had a vote. I sincerely hope we can avoid a vote on this occasion also. I will be constructive in the Joint Committee on European Affairs and I hope all Members will join me in that approach. I would never be so presumptuous or disrespectful as to discuss this or any other Bill with officials or members of any committee until Dáil Éireann has made its decision in the first place, at the relevant stage of a Bill.

I reject the idea put forward by Deputy Harkin that we should not be having this debate. All debates are good for democracy, information purposes and understanding. This is a debate on a Bill which we must enact to take account of the serious implications of two Supreme Court judgments. As I have repeatedly stated, the Attorney General has since advised that we need to change the way in which we have been transposing EU law using secondary legislation. The retrospective provisions of the Bill are essential because the Supreme Court judgments mean that some of the body of legislation in place since 1973 is susceptible to legal challenge. With respect to all Ministers, Governments and parliamentarians since 1972, they presumed the force of law was included in the 1972 EU accession Act. If the law and the Supreme Court's interpretation of the law states otherwise, we have a constitutional responsibility as parliamentarians, both in Government and Opposition, to collectively deal with the decision of the court.

Deputy Harkin asked what safeguards are being put in place in the Bill. First, the powers referred to are vested solely in Cabinet-level Ministers. Second, the Bill in no way cuts across the existing arrangements in the Oireachtas to scrutinise draft EC directives and regulations. Third, all decisions of Ministers will be subject to review by the courts and will be publicly published in full. Fourth, the Members of this House will retain all rights to question and debate all ministerial decisions.

As regards penalties, I have repeatedly recalled that as a member state we are obliged to ensure penalties are effective, dissuasive and proportionate to ensure our laws are upheld. Our level of penalties was set after careful consideration with all Departments. To my mind, those penalties are in line with the best EU practice.

Deputy Allen made some valuable and constructive points. He has first-hand knowledge of the challenges we face in ensuring that we keep track of and influence the direction of EU policy and law. As regards his idea of laying statutory instruments before the House, I have stated we are open to considering it. However, the Oireachtas will have to find an effective solution to the challenge of volume and speed which arises in several cases with both European and other laws.

There were some criticisms of the proposal to retrospectively validate all of the statutory instruments whose validity has been called into question by the Browne and Kennedy judgments in the Supreme Court. This is one of the key purposes of this Bill. It is essential that we avoid a situation in which doubts exist regarding our ability to give effect to EU law. As it stands, there are hundreds of statutory instruments whose validity is in doubt, although this is no fault of the House, the Parliament or the Government but relates to the trust of politicians in the past that their laws were adequate for their day and the future. These regulations were adopted by all Governments stretching back over the past 34 years. They were passed in good faith, with the intention of implementing EU law in a manner that was considered to be perfectly appropriate before the Browne and Kennedy judgments.

In providing for retrospective validation, we have included what is known as a constitutional saver clause. This is designed to ensure the constitutional rights of individuals will not be affected by the retrospective validation of regulations — in other words, the primacy of the right of the citizen remains paramount under the Constitution for decision by the courts. Second, the validity of the approach that we have taken has already been confirmed by the Supreme Court in the Leontjava judgment. The passage of this section of the Bill is extremely important if we are to respond effectively to the consequences of the Browne and Kennedy judgments. As Members of Dáil Éireann, we all have a constitutional and political responsibility to do so.

In summary, this legislation is vitally necessary and clearly arises from the implications of both of the Supreme Court judgments. These require us to update the way we use secondary legislation to give effect to our European Community obligations in Irish law. It is entirely proper that the Government, with the Oireachtas, takes account of those judgments and responds positively to them. It is that simple and straightforward.

We will, as always, reflect carefully on the substantive points made by Members during Second Stage. We are ready to consider reasonable suggestions put forward by Deputies with a view to enhancing in an effective manner Dáil involvement in EU related secondary legislation. I look forward to taking the legislation forward in the Select Committee on European Affairs. I assure the Chair and the House, in particular Deputy Deasy, that I will approach the debate in a positive and co-operative fashion. I ask him and his colleagues to do the same in the interest of all citizens in the discharge of our collective responsibilities as Members of the Dáil representing our republic, a highly respected, successful member state of the European Union for over three decades. I commend the Bill to the House for validation.

Question put: "That the words proposed to be deleted stand part of the main Question."
The Dáil divided: Tá, 56; Níl, 45.

  • Ahern, Michael.
  • Andrews, Barry.
  • Ardagh, Seán.
  • Blaney, Niall.
  • Brady, Johnny.
  • Brady, Martin.
  • Brennan, Seamus.
  • Callanan, Joe.
  • Carty, John.
  • Collins, Michael.
  • Cowen, Brian.
  • Cregan, John.
  • Curran, John.
  • Dempsey, Noel.
  • Dempsey, Tony.
  • Dennehy, John.
  • Devins, Jimmy.
  • Fitzpatrick, Dermot.
  • Fleming, Seán.
  • Fox, Mildred.
  • Glennon, Jim.
  • Hanafin, Mary.
  • Harney, Mary.
  • Haughey, Seán.
  • Hoctor, Máire.
  • Jacob, Joe.
  • Keaveney, Cecilia.
  • Kelleher, Billy.
  • Kelly, Peter.
  • Kirk, Seamus.
  • Kitt, Tom.
  • Lenihan, Brian.
  • Lenihan, Conor.
  • McDowell, Michael.
  • Moynihan, Michael.
  • Mulcahy, Michael.
  • Nolan, M.J.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O’Connor, Charlie.
  • O’Donnell, Liz.
  • O’Flynn, Noel.
  • O’Keeffe, Ned.
  • O’Malley, Fiona.
  • O’Malley, Tim.
  • Power, Seán.
  • Roche, Dick.
  • Sexton, Mae.
  • Smith, Brendan.
  • Smith, Michael.
  • Treacy, Noel.
  • Wallace, Mary.
  • Walsh, Joe.
  • Wilkinson, Ollie.
  • Woods, Michael.
  • Wright, G.V.


  • Allen, Bernard.
  • Boyle, Dan.
  • Broughan, Thomas P.
  • Bruton, Richard.
  • Burton, Joan.
  • Connaughton, Paul.
  • Connolly, Paudge.
  • Costello, Joe.
  • Coveney, Simon.
  • Crowe, Seán.
  • Cuffe, Ciarán.
  • Deasy, John.
  • Durkan, Bernard J.
  • English, Damien.
  • Gilmore, Eamon.
  • Gormley, John.
  • Gregory, Tony.
  • Harkin, Marian.
  • Healy, Seamus.
  • Higgins, Joe.
  • Hogan, Phil.
  • Kehoe, Paul.
  • McCormack, Pádraic.
  • McEntee, Shane.
  • McGrath, Finian.
  • McGrath, Paul.
  • McHugh, Paddy.
  • McManus, Liz.
  • Mitchell, Gay.
  • Morgan, Arthur.
  • Murphy, Catherine.
  • Murphy, Gerard.
  • Neville, Dan.
  • Ó Snodaigh, Aengus.
  • O’Keeffe, Jim.
  • O’Shea, Brian.
  • O’Sullivan, Jan.
  • Perry, John.
  • Quinn, Ruairí.
  • Ring, Michael.
  • Ryan, Eamon.
  • Ryan, Seán.
  • Sherlock, Joe.
  • Stagg, Emmet.
  • Upton, Mary.
Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Stagg and Kehoe.
Question declared carried.
Amendment declared lost.

I declare the Bill read a Second Time in accordance with Standing Order 119(2)(i).