Vol. 108 No. 4
I move:
That Seanad Éireann takes note of the Report of the Joint Committee on the Secondary Legislation of the European Communities on 78 Statutory Instruments.
I should like to tell Senators, if they have any queries or comments to raise on these Statutory Instruments, that the Minister of State at the Department of Finance will take note of their comments and questions and that they will be responded to by the various Ministries involved.
We can discuss Nos. 1 and 2 together but Motion No. 2 will be moved later.
I welcome the opportunity to raise some of the issues, particularly in the first of these reports, the report on 78 Statutory Instruments. I appreciate that the Minister of State will communicate a reply at a later stage. The report deals with 78 Statutory Instruments because there was a backlog of the Statutory Instruments which the Joint Committee on EC Legislation were examining. At the commencement of the report the joint committee decided to raise a number of general issues. It is these general issues which I should like to refer to briefly because they are matters of some importance.
At paragraph 6 of the report the committee refer to what they call the use of the power to implement EC directives by Statutory Instrument. Members of the House will be aware that this power was conferred on Ministers by section 3 of the European Communities Act, 1972. It is a very wide power. Ministers can, by a Statutory Instrument implementing EC legislation, amend, repeal or vary an Act of the Oireachtas for infringement of the regulations.
An issue that is raised here and which should be responded to at some stage is whether if, in relation to a particular EC directive, the Minister in question has not implemented the directive within the time allowed by the directive itself — directives vary as to the time allowed; sometimes it is a year, sometimes 18 months, or longer — it is within the powers given in section 3 of the European Communities Act, 1972 for a Minister to then implement by Statutory Instrument, or whether the Minister is obliged at that stage to implement by way of primary legislation, by an Act of the Oireachtas. The wording of section 3 of the European Communities Act makes it clear that it is to implement the obligation under the Community. If that obligation has not been fully implemented because time has been allowed to run for one reason or another, and the directive has not been implemented, can it be done by Statutory Instrument? It would be useful to get some response on this question in due course.
A second matter which is dealt with in the introductory part of the report concerns another aspect of the implementation of directives, whether it is open to Ireland, as a member state, and to the other member states, to implement EC directives otherwise than by either primary legislation — an Act of the Oireachtas — or by Statutory Instrument — a statutory instrument either under the European Communities Act or under other legislation where it is the relevant legislation — for example, a Statutory Instrument under the Land Act implementing the categories of qualified persons who can acquire land. It is the view of the joint committee, and has been for a number of years, that where the State is required to implement a directive it must be done either by legislation or by a Statutory Instrument. That has not always been the case. It has not been the case, for example, in relation to important directives in the area of agriculture.
For example, the farm modernisation scheme is not implemented by either legislation or a Statutory Instrument; it is a departmental scheme. Similarly, the disadvantaged areas scheme is neither legislation nor a Statutory Instrument; it is a departmental scheme. This has an importance at different levels. First of all, if the implementation is only by a departmental scheme or by administrative measures, with no Statutory Instrument, then the joint committee cannot examine it. It cannot come under the scrutiny of the joint committee.
This has importance also in the area of the Department of the Environment because it appears that a number of EC directives in that Department are being implemented by departmental circular. Those departmental circulars are not accessible to anyone outside the Department. An academic colleague of mine, Dr. Yvonne Scannell, who lectures on environmental law in Trinity College, has extreme difficulty in (a) ascertaining whether there is a circular and (b) if she manages, using all her skills as a detective to ascertain that there is a circular, getting hold of the circular. Yet these circulars deal with matters affecting the quality of water and standards in relation to the human environment. It is extremely important that we know the manner of the implementation of these directives. I would argue also that it be done by Statutory Instrument so that the joint committee can examine the Statutory Instrument and exercise the statutory powers they have to ensure that the Statutory Instrument does what it is supposed to do, namely, correctly and properly implement the directive. If the joint committee are not satisfied with the way in which the Statutory Instrument approaches the implementation of the directive, the joint committee have the power to recommend the annulment of a particular Statutory Instrument. Under the European Communities (Amendment) Act, 1973 if a motion is put down in either House and passed the regulations are annulled. It is important that the joint committee have that power to scrutinise the Statutory Instruments and to monitor them.
It is also very important that our citizens have the full rights which they would have under a statutory scheme. It is much easier for an individual to know what the position is if there is a Statutory Instrument rather than a circular which is not at all accessible. Even a departmental scheme does not give the same degree of rights under administrative law to an individual affected by that scheme. It is much more difficult to argue. The legal potential rights of an individual are more limited. It seems, for example, in important areas such as farm modernisation or disadvantaged areas, that it is desirable that it be done by Statutory Instrument. They are two areas that I felt it would be important to raise as general issues which have come before the sub-committee of which I am a member, which deals with the examination of Statutory Instruments which form part of this report, and which deals with individual Statutory Instruments. I have no particular issues to raise in relation to the individual Statutory Instruments but the two matters I have raised are of a broader concern.
I congratulate the sub-committee which dealt with these very important Statutory Instruments. Unfortunately, there is very little reporting of what happens on that committee, but when one looks at the regulations being brought in through Statutory Instruments one will realise that we should take more cognisance of them. It is only when we get a Statutory Instrument that we find out what the law is on certain issues. If the committee on Statutory Instruments do not go through each Instrument in depth we will not know, for example, what the European legal situation is in regard to the control of pesticides. I was not aware until I read through this report that there are neighbourhood agreements on fisheries which are not covered by any laws. I did not realise that any fishing boat under 75 ft. can fish in Northern Ireland waters if its owner is from the Republic of Ireland. I was not aware that any fishing boat registered in Northern Ireland can fish around our coasts until I received a reply from the Department stating that neighbourhood agreements are in force throughout the EC. We should take more cognisance of the Statutory Instruments. The committee do an enormous amount of work.
When one goes through the Statutory Instruments one sees that the control of life assurance companies was queried by the joint committee last year, before the failure of the Insurance Corporation of Ireland in its general business. Nobody knows exactly where that company is going in terms of its life business but at least the joint committee had the good sense to query where insurance companies were going.
Every area of life here is covered by these Statutory Instruments. If one goes through the appendix one will see that the 78 Statutory Instruments cover paints, veterinary practices and the special price of butter. Very few people realise that when the Government bring in a special price for butter towards the end of the year to attempt to get rid of the butter mountain it is as a result of a Statutory Instrument.
Statutory Instruments cover gas meters, the Land Commission, feedingstuffs, aerosol dispensers, the Broadcasting Authority and the retirement of farmers. If we were to deal with all those instruments without the help of our excellent committee we would be here going through them for the next 12 months. From 1977 to 1982 no meeting of the sub-committee on Statutory Instruments took place. That led to a backlog. Between 1981 and 1983 very few meetings took place but now the sub-committee are working very well. They should be complimented for raising the issues referred to in these two reports. I do not think that will be of any benefit unless the House, and the other House, deal properly with them and not just bring them in as an item on the Order of Business.
