Joint Committee on the Secondary Legislation of the European Communities debate

Chairman

I want to leave item (c) dealing with tobacco aside for the moment. We have then a very weightily document here, item (d)—proposals concerning the right of establishment and freedom to provide services. This is the main job we have to do this evening. We will go through each paragraph of the report seriatim and invite comments from Members as we go along.

Paragraph 1 agreed to.

On page 2, we have these very interesting decisions of the European Court, Reyners case and then the Dutch case. These are two very important decisions, and as you can see, they caused the Commission to change its tactics in a number of respects. In fact, they had to withdraw a number of their Directives.

Deputy Esmonde

Arising from the fact that the relevant Treaty articles, or part of them, have been held to be directly applicable——

Chairman

Among other things, it emphasises for us all the fact that the European Court is a potent reality, something that everybody in the Community must have due regard to. These are two very fundamental and far-reaching decisions.

Paragraphs 2 and 3 agreed to.

If you wish, we will go on to page 3 and begin with doctors. Any comments? You will see that we support strongly the recommendation about the implementation of the Directives by statutes amending the Medical Practitioners acts. That would, I think, find favour with Senator Robinson.

Senator Robinson

On the question of implementing the two Directives relating to doctors, these were adopted by the Council on 16th June, 1975, and we have had 18 months to implement them. Apparently, the Department of Health have made it clear that they intend to do this by a Bill, but if one House is adjourning until the end of October that does not allow much time to fit this in within the 18 months. We may, in fact, default on our obligations to amend the law unless we bring in legislation very quickly.

Senator Lenihan

That is going to be a growing problem—we do not have to do it—this bringing in of legislation rather than regulation. You would be snowed under to a growing degree in regard to implementing Directives.

Deputy Esmonde

Is it absolutely necessary in view of the two court decisions to bring in legislation?

Senator Robinson

It is, yes. The court decisions do not affect these two Directives. They only affected discrimination on the basis of nationality and you need no Directive at all for that now. These two Directives are subsequent to the cases and relate to recognition of the training of medical practitioners, recognition of degress, diplomas and so on and free movement of doctors. We got 18 months to implement these to the end of this year. We are doing it by legislation apparently but we have not yet had any draft Bill to amend the Medical Practitioners Acts.

Senator Lenihan

We could do it by regulation——

Chairman

You are not suggesting, Senator, that we take the easy way out and do it by regulation?

Senator Robinson

Oh no, not at all. I say that since they were passed in June of last year we ought by now to have seen the draft legislation we could be considering.

Senator Lenihan

We may have to do it by regulation. That is the point I am making.

Chairman

Just one point. I note that the Minister has not said he is not going to make regulations; the committee which he appointed recommended so. I presume he will accept that recommendation. As a Joint Committee, we strongly support that recommendation because it is a very important matter and one about which, as our report here says :

. . . it is essential that the changes required be discussed by both Houses so that the public can be fully informed of what is involved.

Senator Lenihan

All I would say is that it may become more theoretical than real if the pressure builds up.

Chairman

In other areas?

Senator Lenihan

Yes.

Chairman

In other areas the need for legislation would not be quite so paramount.

Senator Lenihan

That is true.

Senator Yeats

Should we draw attention again to the fact that this legislation will need to be through both Houses by the 16th December next?

Senator Lenihan

We should draw attention again to the fact that this it just may become just as I said, theoretical and we may find ourselves with a regulation situation in November or something.

Chairman

The paragraph can be amended to indicate that the Joint Committee strongly supports the view that these Directives should be implemented by Statute and points out that the necessary legislation must be enacted by November, 1976 Does that meet with approval?

Senator Lenihan

Yes, we want to emphasise the importance.

Paragraph 4 amended by the addition of " and points out that this legislation must be enacted by November, 1976 " to the penultimate sentence in the second sub-paragraph.

Paragraph 4, as amended, agreed to.

Chairman

Now may I move on to architects?

Deputy Esmonde

This is more concerned with consultants than anything else. Is that not the difficulty we were afraid of that there might be a downgrading in the standards? We discussed that fully. I think there is a bit of a difficulty in so far as the architects are concerned.

Chairman

We set out the situation here very thoroughly as regards architects and have given views of the professional bodies-the RIAI, who have made four points, and then the IAAS who have made two points.

Deputy Esmonde

In a sort of way opposition architects.

Chairman

The main thing there is that the Department of Industry and Commerce, which is the appropriate Department, have indicated to us that they are preparing a Bill.

Senator Lenihan

Yes, for architects.

Senator Robinson

I think the position in relation to architects is that we have not got an Irish Act registering the title of " architect " and that puts us in a rather weak position because we have not defined in Ireland who is entitled to use the title " architect " and yet we are negotiating at the European level. I welcome the fact that the Joint Committee report would express an opinion that a Bill should be introduced and considered by both Houses before the Council Directive is finalised. This is a case where we must anticipate the European Community action because we must know ourselves what the qualifications are for the title of architect.

Deputy Esmonde

Can this be done before the 16th December?

Senator Robinson

No, this is different. This is a draft Directive.

Chairman

We make this very important point here, as Senator Robinson points out that this is a case where the Directive is still a draft and we have no Act in this country so it would be very desirable that we would legislate here and have the matter thrashed out in both Houses before this draft is passed.

Senator Robinson

I think the wording of that particular paragraph on page 6 makes it clear that an Irish Bill registering the title of architect is necessary only for EEC purposes whereas, in fact, I think it could be maintained that we should have a registration of the title of architect here for general purposes, such as recognition in America, Canada and other countries.

Senator Lenihan

You would have it anyway as a national requirement.

Chairman

We will say that the Joint Committee are of the opinion that a Bill should be introduced and passed by both Houses before the issue of the Directive.

Senator Robinson

It is not just for EEC purposes. Though I think it is extremely relevant in an EEC context, it is necessary for world recognition purposes.

Chairman

It is like the EEC making us do something which we should have been doing already.

Deputy Esmonde

It is not as simple as that. I think we have to take into consideration the views of the various professional groupings that represent different categories of architects. I do not think this is something that is purely motivated from a Department of State.

Chairman

There is a conflict between the two bodies. Therefore, it is as well that the Oireachtas should decide the matter.

Deputy Esmonde

How long have they had this to consider? When was this put to them before the disagreement arose? Does anybody know that? Professional bodies are notoriously slow in this country.

Chairman

The relevant point is that both submitted proposals to us.

Senator Robinson

The dispute arises out of the fact that we do not have registration of title of " architect " here, which is unusual now. I think all of the other member states of the European Community either have or are at an advanced stage of having national legislation registering the title of " architect ".

Deputy Esmonde

I take it that some of these bodies have probably a different process whereby they qualify their members. Some are probably just on the basis of an apprenticeship serving their time, and others may be on the basis of doing a recognised course.

Senator Robinson

It is a question of defining what you mean by being able to use the title of " architect ", not of defining who can engage in activities which are, in general, architectural activities.

Senator Lenihan

Both professional bodies would wish to have the definition of " architect " established in national law before this Directive is implemented. They are both agreed on that.

Deputy Esmonde

Do these two bodies take into consideration a person who has a university degree?

Senator Robinson

No, but the Royal Institute of Architects would do so.

Chairman

The Royal Institute of Architects is, if you like, the Irish body.

Senator Lenihan

They both agree that it should be done. It is a matter for the Government to adopt the educational criteria requirements.

Chairman

May I suggest that we have discharged our functions in this Committee with our recommendations that there should be a Bill and that it should be dealt with and considered by both the House before the Council Directive becomes law.

Senator Lenihan

That is as far as we can go.

Paragraphs 5, 6 and 7 agreed to.

Chairman

We now come to the section dealing with nurses and mid-wives. It is very appropriate to be looking at this because there is a very attractive and interesting lobby of nurses in the House today going about their business. I asked them about this matter and they did not wish to make any particular submission to us.

Senator Lenihan

What is the present position regarding domestic legislation here?

Chairman

There is domestic legislation setting up An Bord Altranais. There is the Nurses Act of 1950.

Deputy Nolan

Is it correct that the ten years primary and secondary education represents approximately up to the leaving certificate? The three years vocational training mentioned represents the period that is spent in a training hospital to qualify as a registered nurse.

Chairman

It is not relevant to this particular matter, but I am sure we would all agree that the whole question of recruitment to the nursing profession must be rationalised soon because the present position is that a young girl who wants to become a nurse has to apply to nearly every hospital in the country in order to be taken in. There is enormous duplication of applications. However, that is outside the scope of this Directive.

Deputy Esmonde

There is an interesting post-graduate extra mural course in the College of Surgeons now for nurses, in addition to the normal course.

Chairman

The draft Decision envisages the establishment of an advisory committee which will promote a high standard of training and which must be beneficial in the long run. Each member state will have three experts on that advisory committee, an expert from the practising profession, an expert from the training establishment and an expert from the national competent authority. That leads on to the recommendation of An Bord Altranais that they should be designated the competent authority. An Bord Altranais also recommends that the references in the proposal on the Advisory Committee on Nursing Training to establishments responsible for training should encompass approved nurse-training hospitals, that representatives on the advisory committee should be of nurse tutor or matron status and that matrons or those in administrative positions should be eligible to represent the practising profession on the advisory committee. Our report in draft suggests that we support these eminently reasonable and worthy recommendations of An Bord Altranais.

Paragraphs 8 and 9 agreed to.

Chairman

We now come to mid-wives. There is an amended proposal now before the council and it contemplates further proposals being made on the adoption of uniform standards of training in the member states. The main thing there is that the Department do not anticipate that the introduction of reciprocity for mid-wives within the EEC will give rise to any difficulties or any special implications for this country.

Deputy Esmonde

What is the position regarding other types of nurses, the psychiatric or general nurse?

Chairman

There will have to be reciprocity. The main thing there is to standardise and equate qualifications, training and so on.

Deputy Esmonde

Has this any implication for people who are coming from outside the European Community?

Chairman

Not in the context of this, of course.

Deputy Esmonde

It may be necessary to consider the matter in relation to movement of people. This is becoming quite a problem now.

Chairman

Yes.

Deputy Esmonde

There might be a suggestion from us that that should be looked at the same time as these standards are being fixed. We have had quite a bit of difficulty on the medical side.

Chairman

That is a good suggestion. When the Department are examining these Directives in these areas they might well avail of the opportunity to look at the situation in regard to non-member states.

Deputy Esmonde

It is something I should like to have noted here because it is no use having something on this line without bearing in mind the implications of the other.

Senator Robinson

What are we noting? Do we want to discriminate against non-EEC countries or do we want to facilitate them?

Deputy Esmonde

No. It is having a little difficulty here in so far as making jobs available for people is concerned.

Senator Robinson

I am not clear about what the Deputy wants to have noted.

Deputy Esmonde

You cannot just look at it in the context of purely European qualifications if you are going to have people from outside Europe. What qualifications are they going to have? This is dealing only with European countries. We have no mention of any other part of the world or of what their qualifications are.

Senator Yeats

That is a matter for each national government. It is not a matter for the EEC. Each national government can lay down their own criterion to deal with free movement.

Deputy Esmonde

Free movement and access——

Senator Yeats

Free movement is only inside the EEC.

Deputy Esmonde

Surely third country people can come in here.

Senator Yeats

That is our own business.

Chairman

An Bord Altranais are the governing authority. Anybody coming in here from anywhere in the world has to register with An Bord Altranais.

Senator Robinson

Presumably the register will have to be amended in relation to EEC nationals coming in?

Senator Yeats

We would be bound whether we like it or not to register people coming from EEC countries but whether we register people coming from third countries is entirely a matter of our own legislation. It does not come under the Directive.

Chairman

Deputy Esmonde is raising the point that when the Department are looking at registration in the European Community context they should avail of that opportunity to look at registration in the third world context.

Deputy Esmonde

We might make that suggestion. I think it is relevant.

Chairman

It is relevant. Perhaps for the sake of neatness we might leave it out of this report and raise it in some other context with the Department. We will send them a copy of the debates to draw their attention to the matter.

Deputy Esmonde

I should like a note on this because I consider it is relevant. We have had some difficulty in certain provincial areas. It does not say that any other people coming from other countries have to attain these standards.

Senator Robinson

I think it is quite irrelevant to our consideration of the draft Directive. That is about free movement in the EEC and about the changes it will necessitate. To go into policy considerations on which we might differ very considerably in our attitude towards other non-member states is going beyond the scope of the report——

Deputy Nolan

——and beyond the scope of the Committee, which is more important.

Chairman

I must accept that. However, we will have Deputy Esmonde's views conveyed separately.

Paragraphs 10 and 11 agreed to.

Chairman

Shall we now deal with the section on insurance agents and brokers on page 9? Since the report was drafted we have had further developments. The working party have finished with it, it has gone to COREPER and we shall have to amend the report accordingly. It is getting near the final stages now.

Deputy Esmonde

We have only 12 months to do it.

Chairman

We have incorporated the views of the Federation of Insurance Brokers. The Corporation of Insurance Brokers also consider that there should be requirements as to solvency certificates and professional indemnity policies. We just content ourselves with the statement that it is important that here should be no diminution of the standards required for brokers' solvency and recommended that this aspect be further examined. There is an interesting point in the last paragraph on page 11 which states :

The Joint Committee understands that the Federation may be correct in thinking that the Directive would allow a person to engage in business here who would not be qualified to engage in the same business in his own country.

We have developed that in the rest of the paragraph.

Senator Robinson

Is this because of our lack of legal restrictions on entry of non-nationals?

Chairman

The Community have to accept the lowest common denominator and we have none.

Senator Robinson

Would it be fair to say we are putting down the European standard by not having a standard in relation to non-nationals?

Deputy Esmonde

Not necessarily so, because many people come from London and places like that.

Chairman

As a matter of practice and tradition we have very high standards but no legal standard.

Senator Lenihan

We have high professional standards but not from the legal point of view.

Senator Robinson

One thing that the Directive establishes is that it is forcing us to look at our own situation.

Senator Lenihan

The professional bodies say that this would mean a legal requirement that would be below what is actually the professional requirement at the moment.

Deputy Nolan

What is meant by the two lines in page 9 which state :

the mutual recognition of diplomas, certificates and other evidence of formal education.

What diplomas are involved?

Deputy Esmonde

We have none.

Deputy Nolan

Have we any information of what diplomas the other members of the Nine have?

Chairman

I presume other countries have them. What is involved is that when the Directive comes into effect we shall have to recognise all qualifications and certificates of other countries.

Deputy Nolan

Are these academic qualifications?

Chairman

They are those recognised by national authorities.

Deputy Esmonde

The only bar that is imposed is that a member of the Bar cannot be an insurance broker.

That is the only profession that is precluded.

Paragraphs 12 and 13 agreed to.

Chairman

With regard to the heading of F—Activities in Transport, Travel Agency, Storage and Warehousing Services—this is still at working party level. It governs transitional arrangements pending the full co-operation of national measures and the introduction of mutual recognition of qualifications. There are no provisions in Irish legislation or administrative practices which discriminate against non-nationals in the taking up and pursuit of these activities. Consequently, the Joint Committee do not consider that there can be any objection to the proposal's implementation as far as Ireland is concerned.

The Irish Travel Agents' Association have expressed some misapprehension about the position of part-time travel agents, who, apparently, are not common in other member states. The Department of Transport and Power have informed us that the proposals are not expected to affect the position of part-time travel agents who, by nature of their business, are not likely to move from one member state to another.

Paragraphs 14 and 15 agreed to.

Chairman

Now we come to the section dealing with lawyers—a case of nollimus muteri. I always take pains to point out that it does not mean “ we do not wish to change ” but “ we do not wish to be changed ”. The main thing about it is that it deals with the provision of services, such as they are. From my point of view, the most interesting points are made by the Incorporated Law Society.

Senator Robinson

On that point, is it not true that the Committee asked for the views of both the Bar Council and the Incorporated Law Society? The views of my ruling body, the Bar Council, must be ascertained.

Chairman

In common with most other administrative institutions in this country, we suffer from the fact that the Bar Council have not deigned to reply.

Senator Robinson

I would like to have that recorded.

Senator Lenihan

It is a point that might be taken up with them in other areas.

Chairman

In my experience and, I am sure, in the experience of Senator Lenihan as Minister for Justice, the one body from which it was never possible to get any response—good, bad or indifferent—was the Bar Council.

Senator Robinson

That is on record, I take it?

Chairman

As I said, the Incorporated Law Society have put forward views.

Senator Lenihan

That is interesting.

Deputy Esmonde

It is interesting. It takes time, but they should reply. There is one difficulty here. The Incorporated Law Society is not the only branch of lawyers involved in the question of professional practice, so one should not just accept their views as such. While accepting the purpose of their views, I think they would have to include barristers. Let us consider the first one in Paragraph (a):

The services which may be provided should be specified precisely. For the protection of the public, conveyancing work and the preparation of documents in connection with the administration of estates should be restricted by national law to Irish solicitors.

I feel that this suggestion should include practising members of the Irish Bar. That type of amendment is required to make sense of their recommendations.

Senator Yeats

But this is not what we say. This is what the Incorporated Law Society say.

Deputy Esmonde

I am just saying it is a fault in their recommendations.

Senator Robinson

It is not a fault in their recommendations. They were asked to comment on the provisions as they concern them. They are concerned with solicitors. It is the Bar Council that have not done their home work.

Deputy Esmonde

In the light of the documents being discussed they should have taken a slightly wider view. It has always been known that a barrister can deal directly with the public without the intervention of a solicitor in matters of probate and conveyancing.

Senator Robinson

I would imagine the request to the Incorporated Law Society asked them for their view of how it affected their members. They are not qualified to say how it affects barristers. The Bar Council is qualified to do that but are not taking the opportunity to do it.

Deputy Esmonde

No, but they have made a mistake in fact.

Senator Robinson

I do not agree.

Chairman

At least they have given us a very comprehensive reply and they do make general observations and they may probably be particularly pertinent if this freedom is extended too quickly. That is something of which we should all take note.

Senator Lenihan

That is very patchy because you have a further difficulty between the two legal systems as to mobility between the professions. In Ireland, we have the Common Law System and on the Continent they practise the Roman Law system and any exchange for many years to come will be a very academic matter indeed.

Senator Robinson

I must say, certainly speaking as one individual barrister, I think this proposed Directive on the provision of services is going to be very limited. In essence, we sum up on page 14 what we mean :

The services which may be provided are (a) giving of legal advice and the preparation of legal documents and (b) conduct of civil and criminal litigation in courts.

We go on to say :

In regard to (a) member states may reserve to prescribed categories of lawyers the drafting of legal documents relating to sale and purchase of real property and matters of probate. In regard to (b) member states may oblige the foreign lawyer to " work in conjunction with a lawyer who practises before the court in question and who would be, if necessary, responsible to the court in question or with an " avouï¿½ " or " procuratore " practising at that court.

I think in real terms that, if there were to be a foreign lawyer coming over to practise in the Irish courts, he would practise side by side with an Irish barrister or even with an Irish solicitor.

Senator Lenihan

That is my point about mobility.

Deputy Esmonde

A very significant point here which should not be lost sight of is the fact that an Irish firm is answerable to the court here and the solicitors are officers of the court, particularly if proceedings are taken against them, but if a foreign lawyer comes in he is not a member of the Irish Incorporated Law Society and there might be some considerable difficulty in control by the court.

Draft Report, as amended, agreed to.

Ordered : To report accordingly.

Joint Committee on the Secondary Legislation of the European Communities debate - Wednesday, 30 Jun 1976

Right of Establishment and Freedom to Provide Services.

Joint Committee on the Secondary Legislation of the European Communities debate -
Wednesday, 30 Jun 1976