Senator Molony is listed for one report under item 6 (c), which is a Report on Fourteen Statutory Instruments.
Fourteen Statutory Instruments.
That is correct. We examined 14 statutory instruments. There are four of them in respect of which we would like to draw the attention of the Joint Committee to certain aspects.
Two of the instruments of the four with which we are concerned raise the same point. They are the European Communities (Recognition of General Nursing Qualifications) Regulations, 1980, and the European Communities (Recognition of Dental Qualifications) Regulations, 1980. In both of them the same point arises. Both regulations are concerned with the free movement of professional people, in the first instance, nurses and, in the second instance, dentists, throughout the territory of the European Community. In both instances the regulations give authority — in the case of nurses, to An Bord Altranais and, in the case of dentists, the Dental Board — to charge fees for registration. They also give to them the power to vary those fees, as they see fit. The Joint Committee previously, and for some time, have objected to taking from the Oireachtas the power to determine the amount of fees. Article 10 of the nurses' regulations provides that An Bord Altranais may charge such fees as it shall determine from time to time, with the approval of the Minister for Health, for services rendered. Those fees cover the cost of issuing appropriate certificates, documents and declarations to general nurses for the purposes of the Directive.
Similarly the instrument concerning the free movement of dentists provides for the charging by the Dental Board of such fees as it shall determine from time to time, with the approval of the Minister for Health, for services rendered. These fees cover the cost to the board of issuing appropriate certificates to Irish dentists going to other EEC countries. We have had correspondence, which is annexed to our report with the Department of Health in respect of both instruments.
The Department point out, in both instances, that legislation will be introduced in the future that will afford the Oireachtas the opportunity to deal with this question of fees. Our concern is that it may be some considerable time before the legislation that the Department speak of comes before the Houses of the Oireachtas. We feel that the fees should be prescribed in the regulations themselves and that in the event of a change being sought in the future, an amending regulation should be brought before the Houses of the Oireachtas.
This matter has arisen on a number of occasions before. The Joint Committee have always taken the view that we object to it. We feel that we are frustrating the powers of the Oireachtas in this respect. Paragraph 5 of our report proposes, perhaps radically, that we should consider the annulment of the regulations in the event that the Department do not agree to amending them. I should say, first of all, that this question of annulment has arisen once before only in relation to regulations. That was in 1977 in relation to the European Communities (Fresh Poultry Meat) Regulations, 1976. I should say that our objection to that instrument did not relate to fees only. It related to a number of other matters. It is not a very satisfactory precedent in the sense that a motion was laid before the Dáil and Seanad proposing the annulment of these regulations in May 1977, but the intervention of the general election and the dissolution of the Houses of the Oireachtas subsequently seemed to postpone the issue to the extent that the regulations became law and nothing was done about them afterwards.
The ordinary procedure for the adoption of these regulations by the Oireachtas is that they are laid before the Houses of the Oireachtas and, in the event of a resolution of annulment not being passed within one year from the date they are laid before the Houses, the regulations become law. In this instance the Dental Regulations were signed on 31 March 1980 and the Nurses Regulations were signed on 22 July 1980, which means that if we decide to annul the regulations we would have to bring before the Oireachtas resolutions proposing annulment, in the case of the Dental Regulations, by the 31 March and, in relation to the Nurses Regulations, by 22 July 1981. It is a matter for the Joint Committee to decide whether or not we want to go ahead and propose the annulment. It was the feeling of the Sub-Committee that this point has arisen on many occasions before. It has arisen in relation to the Department of Health and we feel that sufficent regard is not being had to our views on this subject. For example, I can refer the Committee to the Fifty-seventh Report of the last Joint Committee dated 4 May 1977 in which the same problem arose. The Joint Committee, at that time, decided that it would not propose the annulment of the European Communities (Recognition of Medical Qualifications) Regulations, 1976. They said in their concluding paragraph that while the Joint Committee seriously considered recommending that the instrument be annulled because of Regulation 14 — that was a similar fees regulation — they have decided not to do so only because the regulations are temporary and in due course the question of fees will come before the Houses in the Bill which is in the course of preparation. That was in 1977. We find that in 1980 and 1981 the same problem arises. Our options are these: first of all, we can write to the Department of Health and tell them that we are concerned about this and that in the event of their undertaking to amend the regulations we will not propose their annulment. On the other hand, if the Department of Health do not agree to do that we have just about three weeks to propose the annulment of the Dental Regulations and something longer in respect of the Nurses Regulations. It is a matter for the Committee.
I wonder should we pause at this point because the rest of Senator Molony's report deals with other matters. In introducing this the Senator covered a point which concerns me, as to whether the previous Joint Committee had adverted to this. The Senator cited an instance where we have done so, indeed in what seemed to be quite strong terms. My own view about it is that we should just proceed, that we should include a sentence in our report — the last sentence in paragraph 5 should be amended to include a provision in regard to fees and that if this is not effected within the requisite time, to have the matter dealt with.
To annul the regulations?
Yes, to have the matter dealt with. Then we should recommend that they be annulled. We come back to what you say in the previous paragraph and which lies behind this whole matter since 1973. Parliamentary control is our aim. Here is a case where there is no provision for controlling what the Department may do in the matter of charging fees. I honestly think that pursuing this matter in correspondence is not going to affect anything unless we say that it must be dealt with in time sufficient for us to abstain from annulment. We have until 31 March in the first case to change regulations and 22 July in the case of the other. We have got to grasp the nettle.
I agree but I wonder whether we need, in fairness, to put the Department on notice.
Indeed, but I think that the Secretariat should immediately send a report so that they will know exactly what is required. It is an easy matter for them to deal with.
They need not amend it but if they undertake to amend the existing regulations we should be satisfied in view of the short notice available to them.
What control is an undertaking? Within what time? If the regulations are made they would become law and would not be capable of any amendment. One cannot amend a regulation; it is only capable of being annulled. That would expire and parliamentary control will disappear on 31 March in relation to the Dental Regulations. It is not that we did not warn them before. I do not want to be too bullish about this. If one of them accepted the principle by dealing with the Nurses Regulations in time I would be content to let the dental one go through, but I think it is important that we get the principle accepted.
I agree.
What do other Members of the Committee feel in regard to this?
May I clarify one point. It is fair to say that, even though the Houses of the Oireachtas do not have the power to amend the regulations as they stand, the Minister can introduce a new one. We cannot amend the regulation before the House — the draft regulation so to speak — all we can do is annul it or propose that it be annulled.
It is an unfortunate feature of our system but that is true.
It is. If the Minister was prepared to introduce a new one, suitably amended, our problem would not arise.
Unless he did that before the 31 March.
That is the urgency, it must be done within three weeks?
Yes.
Can he not do it afterwards?
He can.
We have time between now and July, provided we do not have the dissolution of the Dáil or something like that.
I am happy that this Joint Committee should rely on an undertaking from the Minister to do it.
We have until July in respect of the Nurses Regulations. Is that not correct?
Yes.
That is sufficient time.
Right. We can always deal with the other one.
We can deal with the other one and we might appear to be more reasonable in seeking an undertaking in respect of the one that will come into operation at the end of this month.
May we leave it to Senator Molony to revise that sentence?
If we altered the last sentence in paragraph 5 as follows: "In the meantime the Joint Committee recommends that the present regulations should be amended to include provision in regard to fees and if this is not effected it proposes to recommend that the regulations be annulled".
Does that give sufficient authorisation?
We may have to go further.
The Secretariat will want some authority to look for an undertaking, will it not?
Do we have to say in our report that we will support a resolution annulling these regulations? I presume that if a Dáil Member of this Joint Committee proposes it in the Dáil and the Chairman, or some other Seanad Member, in the Seanad proposes a resolution annulling it, that is it?
That is right. We would like to take up your idea of the undertaking with the Secretariat.
Can we build that into the report?
Yes, we are trying to see how we can do that.
That can be done in the final paragraph.
Paragraphs 1 to 4 inclusive, are agreed to then.
PARAGRAPH 5.
In paragraph 5 I move:
In line 10 to delete "this is not effected" and substitute "an undertaking to this effect is not given within two weeks by the Department".
The sentence will read: "In the meantime the Joint Committee recommends that the present regulations should be amended to include provision in regard to fees and, if an undertaking to this effect is not given within two weeks by the Department, it recommends that the regulations be annulled".
I am happy with that.
Amendment agreed to.
Paragraph, as amended, agreed to.
On the amendment of statutes, statutory instruments made under section 3 of the European Communities Act may amend statutes where this is necessary to give effect to Community legislation. In its seventy-fifth report the Joint Committee recommend that the statutory instruments in such cases should contain tables setting out in full the sections of the statutes as amended. In regard to Statutory Instrument No. 237 of 1980, referred to at paragraph 3 above, which amends the provision of the Nurses Act, 1950, the Department of Health explain that the regulations had been drafted quite some time before the receipt of the Joint Committee's report and attach a document showing the relevant sections as amended by the regulations. Ideally this should have been included in the instrument itself. The Committee is satisfied with the position and trusts that the practice will be generally adopted. I do not think that needs any further comment. They are moving in our direction.
The next instrument we comment on is good news from the Committee's point of view. This is where we questioned the propriety of identifying tariff headings by reference to national legislation and considered that the relevant secondary legislation should be apparent from a perusal of the domestic instrument. In this instance that proposal of ours has been adopted. We welcome that.
When we see that something we have been saying has been done we like to record our pleasure.
The next instrument we are concerned with is the European Communities (International Carriage of Goods by Road) Regulations. Again, we are concerned here with something which is the subject matter of a further report which I must bring before the Committee later at this meeting. That relates to the whole question of the implementation of Directives. The International Carriage of Goods by Road Regulations purport to implement the first Council Directive of 23 July 1962, as amended. The Council Directive, as amended, obliges member states to free (a) certain categories of international road freight transport from national licensing control and (b) other categories from national quota systems, while permitting national licensing to continue.
The scope of this Directive, I should say in fairness, is fairly limited and deals only with a small section of the whole area of carriage of goods. The adaptation of the Directive envisaged was to cover carriage by road between certain coastal regions in the Community separated by the sea. This adaptation was in fact effected by Council Directive 72/426/EEC of 19 December 1972. Both these Directives appear to have been binding on Ireland as and from the date of accession. The point with which we are concerned with here is that, even though they appear to have been binding on Ireland as and from the date of accession, the Council Directive was at odds with our own national legislation and, effectively, from a perusal of our national legislation it would appear that licences were required. Nevertheless, under the Council Directive licences were not required. Our complaint is that for a number of years, from the date of accession up to the passage of this particular statutory instrument, it was not known to anybody who looked at our national legislation that licences were not required. It appeared that licences were required. The Department say that they introduced the Council Directive by administrative means, that they did not require licences; but, at the same time, the Act of the Oireachtas said that licences were required. On this occasion the end of the story is not bad in that the situation has now been resolved because the statutory instrument gets over that problem. We are concerned that any Government Department, in order to accommodate Community legislation, chose to ignore the provisions of our legislation albeit in the knowledge that legislation would be amended in due course. We do not think this is the correct procedure. We are satisfied that this matter has been attended to by way of the statutory instrument. There is no cause for any further comment on that.
With regard to that report, I thank the Senator. The Department officials gave a very frank account of how this arose and we are fully satisfied with what they said. That is something I should record.
Those are the only statutory instruments that we thought called for any comment.
Paragraphs 6 to 12, inclusive, agreed to.
Appendices I to IV, inclusive, agreed to.
Draft Report, as amended, agreed to.
Ordered: To report accordingly.