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Joint Committee on the Secondary Legislation of the European Communities debate -
Wednesday, 4 May 1977

Penalty Provisions and Four Statutory Instruments Made Under the European Communities Act, 1972.

Next is a draft report on penalties for failure to supply statistical information and Statutory Instruments. We drew attention to the first item last December when we reported on the European Communities (Statistical Surveys) Regulations, 1976 and expressed concern about the maximum fine of £500 stipulated for offences created by the Regulations. We thought that a fine of £500 was too much to be imposed by the District Court. The situation now is that the tide of legal opinion is running in the opposite direction to our reservations. Generally speaking, £500 is acceptable as not exceeding the limit of the District Court's proper Jurisdiction. Moreover the Consumer Information Bill which is being discussed in the Dáil provides for a statutory penalty of £500 in the District Court. There is, however, another aspect of the matter. Why should there be a maximum penalty of £500 for not disclosing information, not filling in forms when in other more serious areas—for instance, the sale of poultry meat—the maximum fine is £200? On that basis I drafted a report to recommend annulment of the Statistical Surveys Regulations. In the meantime, I have had second thoughts about the matter. I think it would be going too far for us to recommend annulment on what appears not to be a major issue. The power to recommend annulment is our ultimate weapon in this Committee and I think, perhaps, it should be kept in reserve for major issues. With that in view, I drafted the following amendment to the draft report now before you:

Before section 1 to insert the following new sections:—

"1. Penalty Provisions

The European Communities Act, 1972 provides that ministerial regulations made thereunder may not create indictable offences. It follows therefore that penalties provided for in such regulations should not exceed what would be regarded as reasonable for an offence triable summarily. In its thirtieth report (Prl. 5419) of 28th April, 1976 the Joint Committee suggested that a maximum fines of £500 might be excessive for such an offence.

In its forty-ninth report (Prl. 5940) of 9th December, 1976, the Joint Committee drew attention to two instruments providing for maximum fines of £500 and undertook to report further in the matter. Since then it has learned that the Attorney General sees no objection to such fines from a legal point of view.

It is noted that the Consumer Information Bill, 1976, which is at present before the Dáil provides for maximum penalties on summary conviction of a fine of £500 or 6 months imprisonment or of both the fine and the imprisonment. If this provision is acceptable to the House, the Joint Committee does not propose in future to raise objections, as a matter of principle, to such penalties in ministerial regulations. If in a particular case it considers a penalty to be wholly unreasonable having regard to the offence it will draw the attention of the Houses to it.

2. Instruments Examined

Since it issued its forty-ninth report dealing with statutory instruments the Joint Committee has examined a further five instruments made under the European Communities Act, 1972. One of these is dealt with in a separate report and the remainder in this report.

3. European Communities (Non-Life Insurance) (Amendment) Regulations, 1976 [S.I. No. 276 of 1976]

This instrument amends S.I. No. 115 of 1976 with which the Joint Committee dealt in its forty-ninth report. The purpose of the amendment is to give effect to a change in the basis of calculating the Community unit of account arising from Council Directive 76/580/EEC which changed the basis of valuation of the unit of account used for insurance purposes. The Joint Committee has no objection to the amendment."

This amendment, if agreed to, would be incorporated in the draft report before you and the proposed separate report on the European Communities (Statistical Surveys) Regulations, 1976 would be dropped.

I should prefer the formulation in the draft report on the statistical surveys where we make it clear that we accept the Attorney General's view of the legality of the £500 as being the maximum jurisdiction of the District Court. We then go on to talk about the way in which a maximum penalty can indicate the seriousness of the offence. At section 3 of that draft report the Joint Committee had expressed concern that the maximum fine of £500 on summary conviction was too high. It notes that the Department of the Taoiseach has been advised by the Attorney General that such a fine is acceptable from a legal point of view. That report went on to say that, while agreeing that this advice must be accepted, the Joint Committee believes that it must examine all penalty clauses in statutory instruments falling within its terms of reference to see if it considers them reasonable in the light of the offences involved. It continued that a fine of £500 is the largest the Joint Committee has seen imposed in regulations under the European Communities Act, 1972. Fifty pounds was the maximum fine submitted under the European Communities (Road Traffic) (Compulsory Insurance) Regulations, 1975, for using in this country a motor car normally based in another Member State without establishing that it is covered by insurance. Again, contravention of the European Communities (Fresh Poultry Meat) Regulations relating to contaminated meat attracts a fine of £200. I would be concerned that these statutory instruments do not come to the attention of the Houses of the Oireachtas in a way that a Bill would. They are not well known to the general public. They may be known to people who are involved in a particular sector but the Committee should be slow to concede that we can have a maximum fine of £500 as a matter of course just because it is the legal and constitutional limit of the District Court's jurisdiction.

We should adopt the approach we adopted in the Statistical Surveys Regulations report. I would support our original idea that we recommend annulment, particularly as we are proposing to recommend annulment of another statutory instrument. In an administrative sense there would be two to be annulled. The motions could be moved at the same time. We could make our point that we do not, as a committee, accept that there can be a standard now of £500 as a maximum.

My second thoughts with regard to that draft report are that, basically, the suggested annulment was on account of the level of the fine. Looking at it since, there are two points. Firstly, £500 is now generally acceptable. There is no argument on that. Secondly, with regard to the discrepancy in the other penalties perhaps we should bring up the maximum penalty in their cases. Another aspect of it is who are involved. There is no doubt that in the case of statistical information returns it would be large companies that would be involved and a maximum fine of £500 is not all that significant in their case, whereas in the case of a motor bike it might be a juvenile and £50 could be significant in his case. Regarding poultry meat, in the case of a small trader £200 could be important. We should not be going into these levels of penalties as a Committee. We are concerned basically with the implication of these instruments in our situation. Now that there is this establishment of a maximum of £500 as a District Court competence level we should leave it at that and leave it to the Departments to raise the level of the other fines.

There is a great deal of merit in what the Chairman says, but could we not concern ourselves in getting a common code of practice? The average fines should not be grossly out of line with each other. For people who sell poultry meat that may poison and kill people, £200 is a very low fine. Then there is a fine of £50 for an uninsured motor bike or car. Dreadful implications may come to an individual who is hit by a car which is not insured in this country and where the individual motorist is not a good mark for the damages.

You are agreeing that these other fines should be brought up?

Yes. When Senator Robinson said she wanted two changes I was going to ask did she mean that one of the changes should be up, and the £500 down.

I certainly like the part of our original draft where we pointed out the inconsistency and referred to other potentially more serious offences for which there was only a smaller fine. Part of our function is to have standardisation. I do not agree that, because £500 is the legal and constitutional limit on what is a minor offence and can be tried before the District Court, it should become the norm for the maximum. It is very hard to say what effect increasing the size of a fine or the term of imprisonment for offences will have on judges in exercising their discretion. Obviously the judge has discretion in the matter. When a judge sees that there is a maximum fine of £500, he will consider the offence very serious. We should be careful about this and we should not recommend standardisation upwards. The Minister in his statutory instrument gives an indication of how seriously the offence is regarded by the Legislature and this is taken into account by the judge in exercising his discretion on the amount of the fine in the particular circumstances of the case. I liked the way we brought that out in the original draft.

If we incorporate that in the draft report, would you be satisfied?

Perhaps we could call attention to it rather than alter the amounts.

I move that the proposed amendment be amended by the addition in Section I of the following paragraphs:

"A fine of £500 is the largest which the Joint Committee has seen imposed in regulations made under the European Communities Act, 1972 and consequently it must be assumed that it is reserved for the offences considered to be the most serious of those that can be created by such regulations.

The Joint Committee doubts if a contravention of the European Communities (Statistical Surveys) Regulations, 1976 comes within that category. That instrument provides for a maximum fine of £500 or for up to 6 months imprisonment or for both the fine or imprisonment where industrial or agricultural employers fail to supply certain information regarding workers' earnings or to reply truthfully and in time to questionnaires or where the information supplied is used for other than statistical purposes.

While such penalties might be warranted for using information obtained in the survey for taxation or other non statistical purposes or communicating such information to third parties the Joint Committee does not accept that a fine of up to £500 is warranted for failure to supply information or to reply truthfully, fully and in time to questionnaires particularly when one has regard to penalty provisions in other regulations made under the European Communities Act, 1972. For example, £50 is the maximum fine permitted under the European Communities (Road Traffic) (Compulsory Insurance) Regulations, 1975 [S.I. No. 178 of 1975] for using in this country a motor car normally based in another Member State without establishing that it is covered by insurance. Again contravention of the European Communities (Fresh Poultry Meat) Regulations, 1976 [S.I. No. 317 of 1976] and the European Communities (Marketing of Fish) Regulations, 1977 [S.I. No. 114 of 1977], both of which relate to standards set to protect consumers of foodstuffs, attract maximum fines of £200.

The Joint Committee finds it difficult to accept that such offences should be considered socially less reprehensible than failure to supply information or to ensure that information supplied is accurate and made available in good time."

Amendment to proposed amendment agreed to.
Main amendment, as amended, agreed to.
Sections 1 and 2 deleted.
Sections 3, 4 and 5 agreed to.
Draft Report, as amended, agreed to.
Ordered: To report accordingly.
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