This report relates to the whole question of the implementation of Council Directives. Some EEC Directives are implmented in this country by what the Department — in this instance Agriculture — describe as "non-statutory" or "administrative" measures. These schemes are financed partly by the Community and partly by national funds. The national contribution is voted annually by the Dáil and the sum voted is appropriated to the service concerned by the annual Appropriation Act. The latter is the sole legislative basis for the schemes within the State.
The previous Joint Committee objected to this practice on the grounds that it frustrated the control which the Houses of the Oireachtas intended to exercise over the implementation of Community secondary legislation. In that Committee's view the detailed provisions of these schemes should have been incorporated in statutory instruments made under the European Communities Act, 1972, and so be brought under the parliamentary control of the State through the agency of the Committee. The Committee's view was not accepted by the Department.
The present Joint Committee revived this issue in December 1979 in their Sixty-sixth report, drawing attention to the fact that the Directive relating to the Farmers' Retirement Scheme had been implemented by a statutory instrument. The Committee asked the Department to re-examine the position in relation to other Directives that had not been implemented by statutory means. The correspondence that we had with the Department is annexed to this report. I would like to draw Members' attention to part of that correspondence, the second paragraph of the body of the letter itself where the Department say the following:
This Department sees no inconsistency in implementing structural Directives by statutory instrument in one case and by non-statutory measures in others. We consider that statutory or non-statutory measures may be used depending where the balance of advantage lies in each particular case. The EEC Treaty does not require Member States to use legislative measures to implement Directives.
And they go on to quote from Article 189, third paragraph, of the Treaty which provides that:
A Directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
The Department in this instance seem to describe themselves as the appropriate national authority and thus see themselves as having the right to introduce, by administrative means, the Directive concerned.
If the implementation of a Directive requires legislation, then under the Constitution, only the Oireachtas can implement a Directive, although the Oireachtas has the power to delegate to the Executive the power to legislate. The question is: has the Oireachtas done so by appropriating the necessary money in the annual Appropriation Act? The Department, it is presumed, would refer to the case of Latchford and Sons v. the Minister for Industry and Commerce to give them authority for doing what they are doing. But the previous Joint Committee held that, although it was not at all clear to them that this decision was applicable to schemes financed partly from the Community and partly from national resources, a different view might be held in some Government Departments. However, the views expressed by the Department of Agriculture in their minute, to which I have already referred, would not lead the Joint Committee to change their opinion. It remains the view of the Joint Committee that Directives such as the two under question should be implemented by statute or statutory instrument. The ones to which I refer are the Disadvantaged Areas Scheme and the Farm Modernisation Scheme. Again this matter has been considered by the Joint Committee before, but there is an analogous view which is taken from the Report of the Committee of Public Accounts on the Appropriation Act. The Committee of Public Accounts, in their report dated 21 April 1977 on the Appropriation Accounts, 1974, examined the question of payments from the Exchequer which were in excess of the limits laid down in legislation and for which the statutory validation was held to be provided in the Appropriation Act. This arises in cases where an Act of the Oireachtas might allow, let us say, to CIE millions of pounds to be spent in a certain way. What happened was that subsequently the Departments spent more money than was provided for in the original enabling legislation. The Minister and the Department take the view that the Appropriation Act gives them the right to expend more than was provided for in the original legislation. The Committee of Public Accounts takes a different view to that. That Committee held that it was clear to them that the efforts made in the past to justify by reference to the Appropriation Act the making of payments in excess of amounts specifically provided for in particular legislation has now led to the situation in which, as in the case of the housing reconstruction grants, statutory limits were being ignored and parliamentary control was no longer evident.
On the general principle involved, the Committee of Public Accounts made the following points, inter alia, as included in our Report:
"(a) The Appropriation Act appropriates moneys voted by Dáil Éireann for services described in Part I, the ambit, of each estimate. It makes no reference to the subheads and therefore gives no legal standing to the subheads ...............................................................
(d) Successive Committees of Public Accounts have been adamant that the Appropriation Act provides no statutory cover for payments in excess of the limits laid down by particular statutes relating to, for example, transport, housing, pensions. This Committee holds the same view.".
The observations by the Committee of Public Accounts reinforce the views held by the Joint Committee, that is, that the Appropriation Act, of itself, could not provide statutory validation for payments. In these circumstances and in view of the fact that the Appropriation Act is the sole legislative basis for the Farm Modernisation Scheme and the Disadvantaged Areas Scheme within the State, the Joint Committee recommends that the present practice for the implementation of these schemes be abandoned and be replaced by appropriate statutory legislation.
I should also say that the Sub-Committee felt strongly about the implementation of Directives by administrative and non-statutory means and proposes that this report be debated in the Seanad.
