Has there not been one order made under the Land Acts which affects the Communities directly?
Proposals for Dealing With Draft Documents.
The first item on the agenda before you is proposals for dealing with draft documents set out in a list issued to Members on 13th August. Perhaps you would all like to extract that list from your papers. The list consists of 223 documents and it comprises all the documents which were received in the Library up to 31st July. There is nothing significant about the date 31st July; we just picked it as a convenient break-off point, but you can see we are faced with a formidable list of documents in arrear, as it were, and I shall welcome any suggestions any Member might like to put forward in regard to this list of 223 documents.
We have sent the list to all Government Departments and asked them to indicate which of these drafts has since become a decision and to indicate the date of the Official Journal in which that decision was recorded. And also those on which a decision was likely to be reached in the near future. The Departments were also asked to indicate to us details of all the regulations etc which they have made under headings (iii) and (iv) of our terms of reference. I shall mention a few further points about that in a moment. We asked the Departments to submit this information to us by the 28th August so that we could correlate it and circulate it to the Members of the committee, but unfortunately it has not been possible to do that. Most of the Departments have submitted the information we required, but two of them have not been able to do so and, even, with the best will in the world, were unable to do so because both of them are under very heavy pressures in regard to a variety of EC work. Therefore, we will, as soon as possible, get this information in from the Departments, correlate and circulate it to Members.
The idea will be that, when we have that information compiled and that correlation done, the Clerk and myself will go through the documents with a view to sifting them, perhaps eliminating a considerable number which might be regarded as not being important enough to come before the committee for deliberation, and that when we are left with the remainder we shall try to arrange to have them brought before the committee in batches. Of course, any Member is entitled to get any document which is in the list of 223 documents brought forward for examination.
We have, as I say, asked the Departments to give us details of whatever regulations they have made under the European Communities Act and also any regulations or instruments which they may have issued under ordinary Irish law which are relevant to EC matters. As well as the list of 223 documents up to 31st July, we now have another list received in the Library during the month of August. There are 55 on that, so that up to the end of August we shall be dealing, in all, with 278 drafts.
Just to round out the picture, since our entry into the Community, there are eight instruments made under heading (iv) of our terms of reference, that is, instruments issued by the Departments relating to EC matters or obligations. This number does not take account of those Departments from whom we have not obtained relevant information as yet. As you know from your agenda, there were 22 regulations, Irish departmental regulations, which were confirmed by the European Communities (Confirmation of Regulations) Act, 1973, and you have four on your agenda. That means that since our entry there were 26 regulations, 22 of which have been confirmed by the Oireachtas. With the four which are on your agenda they comprise all the regulations made since our entry. Would anybody now like to ask any questions?
They are Category (iv) instruments. There have been two from the Department of Lands.
There was a series of matters in the Finance Bill this year which related to stamp duties.
They are also Category (iv) documents. They have been done under our domestic legislation other than the European Community Acts.
Should we not know of any made under our existing legislation?
Yes, we should and we should examine them. It is part of our terms of reference. We have asked each Department to supply us with them.
Is it to be the rule that it is after the regulation is made that we will get it?
That is for discussion. I understand Government policy to be that we will get them after they have been made.
When can we discuss this matter? It seems to be a very important point. There is one regulation affecting company law which might be in a different form by the time we come to discuss it. It does not take cognisance of the fact that our law differs from UK law and, therefore, these Acts have to be read together with some difficulty. It is in draft form.
When you say you understand that Government policy will be to make regulations first and then to let the committee look at them, does that mean they will be subject to confirmation by the Oireachtas and that they will be deemed to be confirmed unless somebody makes a motion?
We now have a specific statutory function in relation to all these regulations.
How does that fall in with the 21 days law?
It should be made clear what our functions are in relation to domestic legislation.
The Act makes it quite clear. It states:
If the Joint Committee on the Secondary Legislation of the European Communities recommends to the Houses of the Oireachtas that any regulations under this Act be annulled and a resolution annulling the regulations is passed by both such Houses within one year after the regulations are made, the regulations shall be annulled accordingly and shall cease to have statutory effect, but without prejudice to the validity of anything previously done thereunder.
Let us be clear about what we are discussing. Deputy Esmonde raised the question—so did Senator FitzGerald—of our ability to see directives before they become regulations, or other instruments. That is one point. The other point is how we would deal with regulations or other instruments when they are made. On the first point, I said I thought the Government thinking—I do not know if there is any formal Government attitude—is that we will see documents after they have been promulgated.
I would be a bit concerned if there was the possibility of large financial outlay or commitment, taking the words " without prejudice to anything done thereunder ".
The Minister for Foreign Affairs might make this clear.
The Minister for Foreign Affairs will come and talk to us and perhaps these are matters which we might discuss with him—whether he believes that our sole function is to examine the documents or regulations after they have been made.
I agree with Senator FitzGerald that we should see the draft of the regulation before it is made. It would be a much better procedure. It makes sense in relation to our terms of reference. From now on we shall be looking for directives from the European Communities which in the course of time will be passed by the European Communities. Since we will be able to consider the draft instrument coming from Brussels it seems unreal that we cannot see the draft document before it becomes a regulation.
We have statutory authority to recommend annulment. We do not require legislation to consider draft regulations in advance. The fact that it is not specified in legislation should not preclude us from considering them and if necessary discussing them with the appropriate advisers from the appropriate Departments before they are put into final form. I would have thought, as Senator FitzGerald mentioned, in most cases we would be given every reasonable assistance to deal with these matters before they come before us finally.
In view of the fact that the Minister for Foreign Affairs will attend this meeting should we not decide that this question be put to the Minister so that we would have his views as to how we should deal with it? There is an item on the agenda which states that we are to deal with draft directives up to 31st August, which comprise approximately 300 drafts. Therefore, I suggest it is a bit premature to discuss now how we might deal with these. It might be wise to defer consideration of how we proceed. Item No. 6 on the agenda refers to the appointment of sub-committees.
I hope I have not misled the committee. The Minister cannot come to see us today. He is coming to see us but unfortunately he cannot come today. He will certainly come at the earliest possible moment. My suggestion to him was for a courtesy visit originally but it would obviously want to be much more than that.
It would be no harm in the meantime to give him notice of these matters, and indicate to him what I think is the consensus view here, that the Irish domestic framework is viewed in that form by this committee. He could have that examined before he comes to the meeting.
We should not under-estimate what is involved because this would require that the staff of every Government Department would bring forward drafts which we would be interested in discussing before they go back to their Departments and are then submitted to the Minister. I am not against the procedure but it will be a quite complicated one. I think it has certain merits because, after all, we shall be doing a retrospective examination anyway. I think this is a matter which could be resolved between the Chairman and the Minister for Foreign Affairs who has shown very considerable flexibility but he has also to convince every member of the Cabinet that they must instruct all the officials——
It could be taken that we will be reasonably selective. We have 223 proposals from the Commission. We shall look at those in which we have an interest on the advice available to us.
With regard to the 223, I do not propose any examination of them today. What I want is your agreement to what is proposed, namely, that we would compile all the information as far as possible, circulate it to you and the Clerk and myself will sift through it and then recommend to you what we think is worthy of consideration.
That is what I am saying. As a result of that preliminary examination by yourself and the Clerk we would have a fairly clear idea of the draft national regulations on which we might be able to offer some useful suggestions.
To facilitate the working of the committee we agree that yourself and the staff should sift these matters so that only those requiring examination should come here, but individual Members may have particular items that they want examined and rather than bring them up ad hoc in the committee, these Members could by notice to the Clerk of the committee indicate what particular proposals they wished to have discussed here. What individual Members suggest and what you bring here from your sifting would be available to the committee and I think that would facilitate the business of the committee.
I agree with what has been said, that we should try to press for the provision of documents before they become regulations but there may be many technical problems involved. At the same time, while not minimising the difficulties it may not be as difficult an operation as one might think. For example, in file D two paragraphs of a recommendation have been amended this year. The procedure seems to be quite flexible. If such paragraphs can be amended this proves the thing can be done.
I just want to sound a note of warning. From a conversation I had with the Minister for Foreign Affairs it was made clear to me that public servants generally, particularly in the case of Departments such as Agriculture, are heavily taxed with EC work at present and the Minister is very anxious that as quickly as possible this committee should build up their own expert staff and not seek to lean on departmental staff which in the event will not be available to service us.
Arising out of what Senator Yeats has said, I hope this committee will operate smoothly whatever was done under statutory regulation. I should not like us to have to recommend an annulment. I hope we would not have to use that power. That is Senator FitzGerald's suggestion, that we should have some advance news of what is coming through so that we need not commit ourselves. We do not want to make the mistake either of going the other way. We want some advance news; we do not want a fait accompli. You kick against it when it is that serious.
Even though we might all think certain amendments might be desirable and you might ask what can you do——
Provided we get it in advance. That has happened already.
No. It seems to me that we can suggest that an amending regulation ought to be brought in, amending such-and-such paragraphs. That has been done in the European Community file D.
If I may come back on that, things may have been done under the regulations. This is what concerns me. People may have acted on them. I do not want that situation to arise if we can possibly avoid it.
Apparently we have power to recommend annulment but not amendments as such. We could be ignored whereas if we recommend annulment it must be considered.
It is a very fundamental and important part of the proceedings. Perhaps we could leave it at this point and I shall convey the committee's views to the Minister for Foreign Affairs informally. To sum up this is what we propose. There were 223 instruments up to 31st July. We shall compile the up-to-date position in regard to each of those, correlate it and send it out to you. The Clerk and myself will assist in formulating a list and recommend to you what we think should come before us in due course. If any individual Members wish to take anything out of the list, that can be considered.
I think that should be done by notice.