Joint Committee on the Secondary Legislation of the European Communities debate -
Thursday, 11 Dec 1975

Report on Nine Statutory Instruments made under the European Communities Act, 1972.

Chairman

Next we have the nine Statutory Instruments which have been made by different Irish Ministers in order to comply with different EEC requirements, since we last reported on 2nd July. I will go through them and await comment on them as I go along.

First of all there is the European Communities (Surveillance of Sisal Binder Twine Imports) Regulations. That is taken with surveillance of certain footwear and surveillance of certain clothing and footwear imports, Statutory Instruments 111, 115 and 116 of 1975. We comment on the fact that, in the case of Statutory Instrument 116 it includes a preamble with specific reference to Community Decisions on which it depends. In the case of the other two, there is no reference either in the text or in the explanatory memoranda to Regulation 1439/74. We point out that is a serious defect in drafting, to omit from a statutory instrument made under the European Communities Act, 1972 any reference to the secondary legislation of the Communities on which the exercise of the power of making regulations under the Act depends. I think that is a fair comment.

We have European Communities (Weights and Measures of Lengths) Regulations No. 200 of 1975. Again, we ask the Department of Industry and Commerce for comments, and we will comment on their replies. Council Directive 71/316/EEC of 26th July, 1971, as amended, deals with the approximation of laws of Member States relating to common provisions for both measuring instruments and methods of metrological control. It contains the provisions governing the granting of EEC pattern approval and the affixing of approval symbols and verification marks.

There is a difference here between the Department's approach in Statutory Instrument 67 of 1973 and Statutory Instrument 200 of 1975. The sub-Committee's reading of the Directive suggests that it is of general application, and it is not satisfied with the efficacy of Statutory Instrument 200. They considered recommending the annulment of the Instrument. However, as the time in which we could recommend annulment of the Instrument goes on to next August, we decided to leave the matter over and to give the Department of Industry and Commerce an opportunity of further re-examining the matter and reporting to us.

Statutory Instrument 160 of 1975 provides that any breach of its requirements be punishable on summary conviction by a fine not exceeding £500 or six months' imprisonment. I wonder if the Supreme Court—perhaps the lawyers would tell us about this—would wear a summary conviction fine of £500. I do not think they are prepared to go beyond £100 or £200 at the moment.

Senator E. Ryan

There is no absolute rule.

Chairman

I think they would look slightly askance at £500.

Deputy Esmonde

Are these figures for fiscal or taxation purposes or anything of that nature? If they are not, that is excluded and they do not seem to come within that ambit where the usual fines are heavy.

Senator Boland

Summary conviction is in what court?

Chairman

The District Court.

Senator Boland

It is very valid. I thought £200 was the maximum fine in a District Court?

Deputy Esmonde

I think so.

Senator Boland

There are three lawyers here. Surely they can answer that?

Senator Robinson

I think the answer is that it must be a minor offence to be dealt with in the District Court. The size of the penalty would be a determining factor. However, it has not been specifically laid down. I would certainly think that £500 exceeds the present scope of penalties in the District Court. There is a possibility that it could be challenged as bringing the offence out of the range of the minor summary offences and entitling the defendant to trial by jury.

Deputy Esmonde

In relation to this Statutory Instrument is the £500 fine once and for all or is it one of these day by day things?

Deputy M. E. Dockrell

Not exceeding £500.

Deputy Esmonde

Some of these have a penalty every day.

Chairman

That is not one of those.

Senator Boland

I have a distinct recollection of amending legislation in the last year or 18 months increasing it from £100 to £200.

Deputy Esmonde

I think we had something like that dealing with licences concerning drugs. It was something like £50.

Senator Robinson

The point is that it could be open to challenge as to whether it is a minor penalty for a minor offence within the meaning of Article 38 of the Constitution.

Senator Boland

It is the size of the penalty. Very definitely the maximum level was fixed in the region of £200 in the last couple of years.

Chairman

That is my distinct recollection. In so far as the Supreme Court is concerned it would not regard a fine of £500 as appropriate to a solitary conviction.

Senator Boland

I agree. It has been fixed by legislation. It went through both Houses.

Deputy Esmonde

I do not know if the particular European Community thing directs the fixing of a penalty. Five hundred pounds is quite outrageous.

Deputy M. E. Dockrell

Is this fixed through the value of the pound or is it expressed in units of account?

Chairman

I think I will ask the secretariat to draft an amendment to the effect that the Joint Committee has grave doubts about the appropriateness of the penalty of £500 on a summary conviction for offences of this nature. Is that all right?

Senator Boland

That is the benefit of having lawyers on the Committee. None of them is prepared to give a decision on that.

Chairman

The Senator and I are.

Senator Boland

And probably both wrong.

Paragraphs 1 to 8, inclusive, agreed to.

Paragraph 9 amended by the deletion of the paragraph and the substitution of the following:

The Joint Committee in considering whether the penalty provided could be regarded as excessive had due regard to a letter received from the Director of the Central Statistics Office (which is reproduced in Appendix II). The Joint Committee has grave doubts that a £500 fine is an appropriate penalty for a summary conviction or that such penalty is warranted by the nature of the offences involved.

Paragraph 9, as amended, agreed to.

Chairman

The next is the European Communities (Measuring Instruments) (Amendment) Regulations. We suspect here, you will see, that the Department concerned made a regulation in anticipation of a Directive before it was actually issued. To that extent they were probably acting ultra vires. It is not a matter of any great consequence. What we suggested is that they take an early opportunity of rectifying it.

Paragraphs 10 and 11 agreed to.

Chairman

The next is the European Communities (Bord Gráin) Regulations. We recognise that the decision to dissolve Bord Gráin was necessitated by membership of the European Economic Community. I draw attention to the fact that amendments to statutes effected by regulations made under the European Communities Act, 1972, are noted in the annual bound volume of statutes. We are also concerned with ensuring that the same annotations will be repeated in the next issue of a general index to the statutes. That is the one that comes out every four or five years.

Deputy Esmonde

Were we not taking that up with them? Was the result good?

Chairman

Yes.

Paragraph 12 agreed to.

Chairman

We now come to the European Communities (Detergents) (No. 2) Regulations. We suspect here that the Department concerned seem to have brought about a situation where there would be two offences covering the same type of actions. We ask them to re-examine that situation. We will just have to wait and see what they will do about that.

Paragraphs 13, 14 and 15 agreed to.

Chairman

Next we come to a very important measure, that is the European Communities (Road Traffic) (Compulsory Insurance) Regulations. I think it would be just as well if I quoted the draft report here.

Directive No. 72/166/EEC of 24th April, 1972 obliges Member States to refrain from making insurance checks (apart from random checks) in respect of vehicles entering their territories from other Member States. It requires that contracts of motor insurance cover loss or injury caused in other Member States according to the law in force in those States and that Third Country vehicles entering a Member State have similar cover.

These regulations implement the Directive. They also provide for the abolition of insurance checks in respect of vehicles based in certain other countries. These latter provisions do not arise from Directive 72/166/EEC but from decisions of the Commission (74/167/EEC and 75/23/EEC) given after agreements with the countries concerned had been concluded.

The Joint Committee raised in writing with the Department of Local Government specific queries in relation to particular provisions of the Regulations. Copies of the correspondence appear in Appendix VI to this report.

The practical effect of these arrangements as far as Irish motorists travelling abroad are concerned is that since 1st January, 1974 their existing motor insurance policies cover, according to the law in force in other Member States, any loss or injury caused in those States. The policies also provide similar territories in respect of designated territories other than Member States.

A Green Card is no longer needed, therefore, when travelling in those countries unless extra insurance cover is required. As a matter of prudence, of course, extra cover may well be desirable as the cover required by the national laws relating to compulsory insurance may not be sufficient to meet all civil liability to which a visiting motorist may be exposed.

A motorist with an insurance policy from here going abroad is covered in any country he visits which is covered by the Directive, in so far as compulsory cover is required in that country. It might not cover him for all his civil liabilities. We then state :

As far as visiting motorists to this country from the designated territories, including EEC countries, are concerned their policies will provide the minimum cover required by the law in this country relating to compulsory insurance. To the extent of that liability the Irish Visiting Motorists Bureau will ensure that any claims against such motorist are met.

Senator Boland

Could I say that the gentleman who came from that bureau made clear in his submission that the legal extent of that cover is in the region of £1,000 which means that if a visiting motorist crashes into your parked car the extent of liability would be held by that bureau at £1,000 irrespective of the cost of damage and irrespective of whatever cover he might have privately in his own member State. I suggested—Deputy Dockrell was acting as Chairman that day—that we also perhaps should recommend that the maximum cover provided by the Visiting Motorists Bureau ought to be made £7,000 to cover in a realistic way situations and liabilities that might arise. It would be consequent upon the EEC Directive and I think it is within the ambit of this Committee.

Chairman

I do not think we could accept your submission because, as was pointed out, that would mean going back to the Commission again to resolve the matter. It took many years to get the Directive out of the Commission and into the state in which it is at the moment.

Senator Boland

What I was recommending was that Irish legislation should see to it that the minimum cover required here would be raised. Apparently the minimum cover that any insurance company has to give a person here is £1,000 but the person submitting views on behalf of the Visiting Motorists Bureau said that most of us would discover on examining our policies that our cover was for more than £1,000; that the £1,000 is the limit that is laid down, apparently, by Irish law and consequently anyone having an accident in this country is covered to whatever Irish law demands, which is £1,000. What I am suggesting is that consequent upon this EEC law, this Committee should suggest that the minimum cover in this country should be raised to take account of the fact that a visiting motorist might cause damage far greater than £1,000, but would be assessed at that figure which is specified by our legislation. I was not suggesting we go back to the Community for it.

Chairman

Again, does it come within our terms of reference?

Senator Boland

We are the Committee on Secondary Legislation.

Chairman

We are just dealing here with the Directive of the Community implemented by regulation.

Senator Boland

Yes, but heretofore was it not the case that a visiting motorist who had an accident was covered to whatever extent his own insurance within his own country covered him? Now, as a result of this change he will only be covered up to the minimum required by legislation in this country which is £1,000 and that is why I suggest we should change it.

Senator E. Ryan

Whichever is the lesser. It is whatever the minimum is in this country or whatever insurance already——

Senator Boland

Which could be nothing or a lot. In many cases the Irish one would be less than in some other Member State.

Chairman

It would be a general change in our law applying to the Irish persons generally. Therefore, it is too broad a policy issue to come within our terms of reference. Admittedly, this Directive and this Regulation draw attention to it. In so far as it is a matter for Irish law of general applicability it is surely not within our terms of reference to make a recommendation on it.

Senator Boland

Except that if anybody is crashed into by a fellow-European the Visiting Motorists Bureau can fix the maximum liability at £1,000 as far as damage to the vehicle is concerned. That is the point I am making.

Chairman

In Britain, there is no minimum at all.

Senator Boland

But there are two committees over there who are supposed to be dealing with that.

Chairman

Surely our obligations in this regard are confined, first of all to examining the Directive and also to see if the Irish regulation gives effect to the purposes of the Directive. The Senator has rightly highlighted in this connection a much broader issue, whether or not £1,000 is sufficient in an overall context both for the visiting European motorists and for Irish people generally.

Senator Boland

I am satisfied that in an overall context it is not, but I accept that this is outside the terms of reference of this Committee. I sought to highlight it by using the example of a visiting motorist whose liability could be assessed at a maximum of £1,000. However, I have made my point.

Chairman

Would you be satisfied with the fact that reference to it will appear in our records?

Senator Boland

Yes. I thought we were supposed to make recommendations on whatever spin-off effect Community Directives would have within our own State, and, in this way, this will have a spin-off effect definitely because it means the maximum liability a visitor can have is £1,000. I thought it would be within our ambit.

Chairman

If it were only a matter of the liability of the visiting European motorist arising out of European Secondary Legislation then I would agree with you, but in so far as your proposal would affect a vast number of ordinary Irish motorists having nothing whatsoever to do with the Community or travelling in it or anything else, I think we would not be competent to make a recommendation.

Senator Boland

I have to accept that.

Deputy Esmonde

Could it not also be done if we amend our local legislation? Then it automatically has an effect on the Directive's provisions.

Chairman

There is something we can do. We can ask the secretariat to communicate your views to the Department of Local Government. Would that meet your point?

Senator Boland

I think so.

Deputy Esmonde

Yes.

Paragraphs 16, 17 and 18 agreed to.

Chairman

Next we have an amendment from Senator Eoin Ryan.

Senator E. Ryan

I would like to move an amendment:

" Before paragraph 19 to insert a new paragraph as follows:—

Methods of Implementing Secondary Legislation.

The Joint Committee accepts that Ministerial regulations made under section 3 of the European Communities Act, 1972 may lawfully amend Acts of the Oireachtas or other statutes in force if such is required by the Community secondary legislation which the regulations are to implement. However, the fact that the power exists ought not, in the Joint Committee's opinion, to mean that it is appropriate to use it in every case. Regard should be had to the relative importance of the statute to be amended and to the range of its application to determine whether the amendment should be effected by a statutory instrument or amending statute. In the case of a statute such as the Road Traffic Act, 1961 which is of such importance in the everyday life of citizens the Joint Committee considers that any proposals for its amendment should be initiated by a Bill introduced in the Dáil or Seanad. It recommends that when opportunity offers Regulations S.I. No. 178 of 1975 should be repealed and its terms incorporated in an amending statute."

I think that the purpose of the Joint Committee is to ensure that on the one hand secondary legislation gives the maximum benefit to this country, and on the other hand that such secondary legislation as may cause hardship or inconvenience here should cause the least possible hardship and inconvenience. We are talking about both the content and the form. The amendment or addition that I am suggesting is entirely a matter of form and it is entirely within our own discretion. It is arguable that certain Acts which rarely, if ever, see the light of day can be amended by way of regulation. In the case of a Road Traffic Act which is in constant use and which is in use in the courts literally every day of the week and is constantly being interpreted, I think it is very important that any amendment of an Act such as that should be done in the most conservative and formal way, which means that it should be done by a Bill leading to an amending Act. Consequently, I think it is inappropriate in the case of such an Act to amend it by way of regulation as is being done in this case.

Certainly, in this case we should recommend that the changes that are being made should at the earliest possible opportunity be included in an amending Act when the Road Traffic Act is being amended for one reason or another in due course. We should express the general view of Acts that a case such as this should always be amended by way of an amending Act, not by regulation. Otherwise in due course—no less than a few years' time—we will have absolute chaos in trying to interpret Acts which are in constant use such as this one.

Chairman

That is a very valid point, particularly as Senator Ryan has not suggested that every one of these changes necessitated by secondary legislation should be immediately dealt with by way of amending legislation. Senator Ryan, very wisely, is prepared to be satisfied with the situation where the amending legislation will be brought in on the first convenient occasion. Is that right?

Senator E. Ryan

Yes. I am compromising there because we must be realistic about it. I would not like that to be taken as a pious wish and forgotten about. I think we should constantly urge the Departments concerned to do this quickly and not merely accept it as a pious wish.

Deputy E. Collins

I support Senator Ryan's idea. He says here:

In the case of a statute such as the Road Traffic Act, 1961, which is of such importance in the everyday life of citizens the Joint Committee considers that any proposals for its amendment. . . .

That is a bit far reaching. I suggest that a regulation could be made under the European Communities Act, 1972, in respect of such an important Act, as the Road Traffic Act, but not be of major importance. If it only affects the Road Traffic Act in a minor way it would be appropriate to be done by regulation but where such a regulation materially affects an important section of the Act, I concur with Senator Ryan's feeling on it.

Chairman

That is what Senator Ryan is saying.

Deputy E. Collins

I accept that.

Chairman

It is the importance of the Road Traffic Act, not the importance of the amendment.

Deputy E. Collins

The Senator says that any proposals for its amendment should be initiated by a Bill introduced in the Dáil. I disagree with the word " any ".

Deputy Esmonde

I am very glad that Senator Ryan has brought this forward. This is not the first time that we have adverted to this problem. We had it in relation to an amendment of the Land Acts earlier on in the sittings of this committee. We pointed out the considerable difficulties that could arise and one would not be able to trace where the amendment arose. Some temporary expedient was invoked whereby special parts of the Land Acts were printed and produced in some sort of pamphlet form for the use of the legal profession. It was a regulation that was in use every day on the solicitor's desk in property transactions. When we are dealing with a matter that is of a permanent nature and of everyday occurrence, of serious implication to the ordinary man in the street where it touches everybody it is desirable to have it in the form of a statute.

Senator Boland

Yes, I concur fully. I am speaking as a parliamentarian as well as a politician. It is regrettable that there is increasing reliance on amendment by regulation or order rather than by going through the parliamentary process.

Chairman

The essence of Senator Ryan's proposal is that because the Act is of such fundamental importance, any amendments should subsequently, at some stage, be incorporated in amending legislation.

Senator E. Ryan

I think so because one should make the decision that in the case of an Act of the type that we have discussed, an important one in everyday use, what is important from the practitioner's point of view and the point of view of the courts is that they should always know that the Act has been amended, and that they can easily trace what amendments have been made by looking at the amending Acts. If they have to look for amending Acts and look for regulations it will make life very difficult for the people involved, the man in the street as well as the practitioners. Once you make the decision that the Act is the kind that should be amended only by statute it should be so amended in every case. I know that there will be amendments of very little importance, but at the same time, if you give on that, you then have to make judgments about what amendments are important.

Chairman

Particularly in view of the fact that you are prepared to leave it over to the first convenient occasion. What will happen then is that every now and again you will have a tidying up amending piece of legislation that will incorporate all the minor or major amendments to the Acts made in the meantime.

Deputy Esmonde

If one was to allow this use of a statutory instrument to run wild, we might come to the situation whereby we would have to ask for the reprinting of a lot of our Acts of Parliament. Let us be careful about this. The Acts of Parliament come out as a bound volume after a period of time. Those are the volumes that are held in every registrar's office and solicitor's office. They are available and are used. If you have statutory instruments you will run yourself into trouble. You will have duplication of books that have to be obtained. You will run into tremendous expense. That is one simple fact.

Another thing is the question of indexing to cross reference. There have been considerable difficulties experienced in the past in relation to this, certainly among lawyers who have the business of working in these things. It must be frightful for the business and agricultural communities to try to trace a lot of these regulations which are of vital importance. A lot of these carry quite serious penalties.

Deputy E. Collins

I am afraid we accepted, when we became members of the European Economic Community, that our life would become more complicated. While I fully appreciate the problems facing the legal profession, the European Communities Act was an Act to enable a system of regulations to be used to amend Acts because of our membership of the EEC. I am sure we could have a very good debate on the need to keep important Acts especially updated. I am afraid the legal profession will have to face up to the fact that there will be a lot of indexing procedure.

Senator Boland

The point is not the inconvenience that might be incurred by any one profession or another. The point is the idea that major Acts that are in everyday use can be changed in their effect by an order or a regulation made by one individual of the Government of the day on the advice of the civil servants without the views of Parliament being made known on it. This is surely what Senator Ryan is seeking. I think it is a very reasonable point. I understand it is not to make it more convenient for the legal profession but rather to involve the democratic process more in the changing of legislation.

Deputy Esmonde

That is a very good point, but what I am thinking more of is the unfortunate client who wants to get the matter interpreted and a solicitor will not have these statutory instruments.

Senator Boland

There are very wide ranging powers under the 1963 Planning Act which governs the type of conditions for planning permission. I discovered that very often where we sought to provide additional and what would have been better conditions in the planning permission, to provide for more orderly development, we were inhibited from doing that because the regulations made by the Minister did not specifically allow us to make those particular conditions, and because they are not specifically enumerated in the regulations, we cannot make them. In that regard, those regulations are more important than the Act itself and yet they will never be discussed by Parliament. In the same way if Senator Ryan's amendment is not agreed to and acted upon, regulations may be made which could have more far-reaching effects than the Road Traffic Act and nobody elected to represent the people would ever comment on them.

Deputy Esmonde

I would like to have it stated——

Chairman

Would you abstain?

Deputy E. Collins

Certainly.

Deputy Esmonde

That means it will be unanimous.

Amendment agreed to.

Paragraph 19 agreed to.

Draft report, as amended, agreed to.

Ordered: To report accordingly.