I move:
That Seanad Éireann takes note of Report No. 16 of the Joint Committee on the Secondary Legislation of the European Communities: nine Statutory Instruments.
Report of Joint Committee on the Secondary Legislation of the European Communities: Motion.
The 16th Report of the Fourth Joint Committee on Secondary Legislation, which is the subject of the motion down for discussion today, deals with nine statutory instruments made in implementation of Community legislation in Ireland which were selected by the Joint Committee for examination. Senators will be aware that the statutory instruments in question relate to the responsibilities of several Government Departments. I intend to address the comments made by the Joint Committee in regard to these instruments.
The Joint Committee draws attention in its report to the methods employed to implement Community legislation in this country with specific reference to two sets of regulations made in the area of Road Traffic, namely the European Communities (Road Traffic/Compulsory Insurance) Regulations 1975 and the European Communities (Licensing of Drivers) Regulations 1984. The former were made in implementation of the first EC Directive on Motor Insurance which in effect abolished insurance checks on visiting EC vehicles in all the member states and eliminated the need for the drivers of the vehicles involved to secure and present "Green Cards". The latter gave effect in Ireland to a clause in an EC Directive on driver licensing under which a person who holds a valid driving licence issued by a member state of the European Community may, for a period of 12 months after he has taken up residence in another member state, drive any vehicle which he is permitted by such licence to drive.
The view expressed by the Joint Committee that all primary legislation relating to road traffic should be contained in the Road Traffic Acts, and that all subordinate legislation pertaining thereto should be contained in regulations made under these Acts, has been noted by the Minister for the Environment. While this view is accepted, the Minister has asked me to point out that, because of time and staffing constraints, Community legislation was implemented in the first instance by way of regulations made under the European Communities Act 1972. The intention has always been to incorporate the EC Directive provisions in appropriate amending or new primary legislation as soon as possible. I understand that suitable provisions to replace the regulations referred to by the joint committee will be incorporated in a Road Traffic Bill which the Minister for the Environment hopes to bring before the Oireachtas later this year.
The remainder of Report No. 16 is devoted to detailed consideration of three of the statutory instruments selected for review. I propose to consider each of the instruments in turn in the order in which they are dealt with in the report.
The regulations made by the Minister for Industry, Trade, Commerce and Tourism in Statutory Instrument No. 367 of 1984 repeal the Motor Vehicles (Registration of Importers) Act 1968 which provided the statutory framework for special arrangements which applied to the assembly and importation of motor vehicles in Ireland. When originally introduced in 1968 these arrangements, known as the "Scheme", were intended to apply until 1992. However, under the terms of Protocol 7 annexed to Ireland's Treaty of Accession to the European Communities, we were obliged to terminate the scheme by 1 January 1985.
The suggestion of the Joint Committee that regulations under the European Communities Act, 1972, giving effect to secondary legislation of the institutions of the European Communities should contain a reference to the legislation concerned has, of course, been adopted. The vast majority of the regulations under that Act are, in fact, made to give effect to Commission or Council Directives (that is, the secondary legislation to which the Joint Committee's suggestion referred). However, the regulations in question in the present case give effect, not to secondary legislation, as such, but to a Protocol to the Treaty of Accession to the Communities. In the circumstances, an appropriate reference was inadvertently omitted.
I should like to point out, however, that such references are for the purpose only of giving information to the reader, and their omission does not affect the validity of the instrument concerned.
The second point made by the Joint Committee in relation to this statutory instrument was that the explanatory note to the instrument should not merely have explained why the Protocol required repeal of the Act but should also have made reference to what it describes as the "associated fiscal measures" introduced by other statutory instruments following on the repeal of the Act. This point has been answered in part by the Department of Industry, Trade, Commerce and Tourism in correspondence with the Joint Committee in which the Department accepted that some clarification of the reasoning behind the regulations should have been given in the explanatory note. I am advised, however, that it is not necessary or usual to refer in such a note to "associated measures" not directly within the ambit of the instrument itself.
The second instrument examined by the Joint Committee was the European Communities (Cereal Seed) Regulations, 1985, the purpose of which was to postpone by one year, to 1 January 1986, the operative date for the implementation of the 1983 regulation prohibiting the sale of second generation cereal seed in Ireland. The Joint Committee, while not disagreeing with what the instrument sought to do, considered that it was open to objection on the grounds that it purported to have retrospective effect and felt that the matter should have been dealt with by statute instead of by statutory instrument if the Minister for Agriculture could not have availed of a delegated legislative power other than that of regulations made under the European Communities Act.
The unusual circumstances which necessitated recourse on the part of the Minister for Agriculture to the making of these regulations are set out in correspondence between the Joint Committee and the Department of Agriculture which is reproduced in an appendix to the report. The views expressed by the Joint Committee have been noted by the Minister for Agriculture.
The other statutory instrument reviewed by the Joint Committee was the Land Act, 1965 (Additional Category of Qualified Persons) Regulation, 1983. This regulation was made by the Minister for Agriculture following the initiation of court proceedings by the European Commission in January 1983 in pursuance of its contention that section 45 of the Land Act, 1965 was in breach of Article 52 of the EEC Treaty. The regulation adds to the list of qualified persons under section 45 of that Act any citizen of a member state of the European Communities who is exercising the right of establishment under Article 52 of the Treaty. It is stressed that this category consists only of EEC citizens who are exercising the right of establishment as self-employed persons in this country by way of economic activity and who acquire an interest in agricultural land for the purpose of exercising that right. The category does not include the acquisition of land by companies, or by persons acquiring holiday or retirement homes.
This regulation does not purport to amend the Land Act, 1965. It was made by the Minister for Agriculture in exercise of his powers under section 45 of that Act. This enables him to declare by regulation categories of qualified persons in addition to those mentioned in the section itself.
I note that the Joint Committee have expressed themselves satisfied, following correspondence with the Land Registry and the Department of Agriculture, that the new category of qualified persons is clear and that the instrument gives rise to no administrative difficulties.
A glance at the subject-matter of the statutory instruments covered in the Joint Committee's report gives an indication of the extent to which obligations resulting from Ireland's membership of the European Communities now impinge on economic activity in this country. The growing body of Community law is having a considerable and increasing impact on the everyday lives of our people. Although it may often appear to be unspectacular and technically complex in nature, it is an area in which the relevance of the Community and the opportunities and challenges it presents become manifest for many people.
The increasing harmonisation of Community law is part of a process which is taking place in parallel in all of the member states aimed at creating a genuine single market throughout the entire Community. The Intergovernmental Conference to review the EEC Treaty which began work after the Milan European Council has prepared a Single European Act incorporating the results of the conference, although this Act is subject to overall reserves by Denmark and Italy which we hope will be lifted soon. One important aspect of the agreement reached at the conference is the setting of 1992 as the target date for the achievement of a single internal market, and the use of qualified majority voting, rather than unanimity, under relevant Treaty Articles to make possible the necessary harmonisation of legislation. As a country which is heavily dependent on its export performance for its economic growth and development and which has often been frustrated by technical obstacles to trade, we should welcome the modest but significant steps which have been agreed with a view to making the early achievement of a single internal market in the Community possible.
Before I conclude, I should like, a Chathaoirligh, to pay tribute to the work of the Joint Committee on Secondary Legislation. The present Joint Committee, following in the distinguished tradition established by its three predecessors, have displayed a notable technical expertise in the discharge of the important scrutinising functions in relation to the complex area of Community legislation with which it has been entrusted by the Houses of the Oireachtas. Moreover, the Joint Committee has demonstrated a capacity to address, where it is appropriate to its terms of reference for it to do so, issues of central importance to the future development of the Community and to Ireland's role within it. The series of valuable reports which the Joint Committee have produced are a testament to the scope, diligence and quality of their work. These reports and the public debate which they generate have an important role to play in helping to promote and sustain public awareness of the work of the Community in all its aspects, and the impact of this work on economic and social life in Ireland.
Under its Orders of Reference the Joint Committee on the Secondary Legislation of the European Communities are enjoined to examine domestic regulations made under the European Communities Act, 1972 and any other instruments made under statute and necessitated by the obligations of membership.
There is a statutory provision that any of these statutory instruments may be annulled by resolution passed by both Houses only if the Joint Committee so recommend.
Accordingly the Joint Committee aim to examine every statutory instrument coming within their remit and to report thereon to both Houses. To date the present Joint Committee which was set up in 1984 has adopted four separate Reports on statutory instruments. The report under review here to day is the third of this series.
The scrutiny of domestic implementing regulations, many of which are extremely technical and complex can be regarded as the unglamorous side of the work of the Joint Committee. The members of the sub-committee in question are to be congratulated for their efforts in this regard. It should also be put on record that this Joint Committee at its inception had inherited a large backlog of statutory instruments for consideration. This back-log was cleared and the scrutiny is fully up to date.
There is going through the central part of all of these reports certain points of criticism which tend to repeat themselves: (a) Bad draughtsmanship; (b) Unusual use of power; (c) Appropriateness of penalties; (d) Failure to cite relevant authority; (e) Statutory instrument should be comprehensible in itself so that it is unnecessary to consult original Community legislation in order to comprehend the scope of the domestic instrument; (f) Obligations of the public should be clear especially where the creation of a public offence is involved; (g) Fees: The Joint Committee has not accepted that Ministers are entitled in regulations made under the EC Act, 1972 to delegate to themselves or others the power to fix and vary fees administratively. Such action removes fees completely from the control which the Houses of the Oireachtas are seeking to exercise through the Joint Committee.
In report No. 16, nine Statutory Instruments are examined with attention being drawn specifically to four instruments.
Correspondence with the Department of the Environment in relation to Licensing of Drivers Regulations 1984 indicated that a European Council Directive was implemented in part by domestic Regulations under the Road Traffic Act, 1961, and in part by domestic Regulations under the European Communities Act, 1972. The report makes two observations on this. Firstly, the 1961 Act is of such importance in the everyday life of citizens that it would more properly be amended by a Bill introduced in the Dáil or Seanad. Secondly, it is undesirable that the law relating to road traffic matters should be "spread throughout different codes of legislation". A useful suggestion is made that all primary legislation relating to road traffic should be contained in the Road Traffic Acts and all subordinate legislation pertaining thereto should be contained in regulations made under those Acts.
In view of what appears to be the very irregular dispersion of road traffic legislation, I endorse this worthwhile suggestion. I think the Minister has taken this into account and indicated that a comprehensive Road Traffic Bill will be introduced by the end of the year. This will be welcomed on all sides of the House.
The Motor Vehicles Regulations 1984 which repealed the registration of Importers Act, 1968 will be remembered by all motorists as heralding the promise of cheaper cars. The Lord have mercy on whoever said that. Under Protocol 7 annexed to our Treaty of Accession Ireland was obliged to terminate the scheme for special support to the motor industry after the period of transition. The statutory framework for this scheme was provided by the 1968 Act repealed by these regulations.
The report instances two defects in this statutory instrument. First, any reference to the Protocol was omitted and, secondly, the Joint Committee considered that there should have been some reference to the reason the 1968 Act was being repealed and also to the associated fiscal measures introduced by other instruments which had the effect of "counteracting the benefit that might have accrued to consumers..."
The Joint Committee go on to warn the Department of Industry, Trade, Commerce and Tourism, and quite rightly in my view that but for the fact that it implements important Treaty obligations, it might have considered annulment.
Finally, the report castigates the Department of Agriculture for the purported retrospective effect of the Cereal Seed Regulations, 1985.
Important issues of principle are raised in this report and it is heartening to see them now being noted in this House.
Since the Joint Committee issued their thirteenth report which considered 46 statutory instruments they have examined these further nine. As Senator Smith has so very rightly said, it is an aspect of the work of the Joint Committee that is very unexciting and, perhaps, mundane. These instruments were considered in detail by the sub-committee under the chairmanship of Deputy Maurice Manning. We on the Joint Committee acknowledge our indebtedness to Deputy Manning and his colleagues for their very thorough and dedicated work.
In part 2 of this report the Joint Committee again draw attention to the method of implementing Community secondary legislation, this time specifically in relation to instruments affecting the road traffic code.
In part 3 the Joint Committee deal with three statutory instruments individually. In their consideration of the European Community's Licensing of Drivers Regulations 1984, the Joint Committee raised certain queries with the Department of the Environment and the Department's reply is reproduced in an appendix to this report which indicates that the Council directive No. 180, 1263 of 1980, on driving licences had been implemented in part by regulations made under the Road Traffic Act, 1971, and in part by regulations made under the European Communities Act, 1972.
The first Joint Committee, who were appointed in July 1973, in their 22nd report drew attention to the methods of implementing Community secondary legislation when they reported on their examination of the European Communities Road Traffic Compulsory Insurance Regulations, 1975. These regulations also amended the Road Traffic Act, 1961, and the present Joint Committee considers it appropriate to reproduce the recommendations here in relation to implementing Community secondary legislation.
We accept that Ministerial regulations, made under section 3 of the European Communities Act, 1972, may lawfully amend Acts of the Oireachtas or other Statues in force if such is required by Community secondary legislation, which the regulations are to implement. However, the fact that the power exists ought not, in our opinion, to mean that it is appropriate to use it in every case. Regard should be had to the relative importance of the statute to be amended and to the range of its application to determine whether the amendment should be effected by a Statutory Instrument or an amending statute. In the case of a statute such as the Road Traffic Act, 1961, which is of such importance in the everyday life of the citizens of this country, the Joint Committee consider that any proposals for its amendment should be initiated by a Bill introduced either in the Dáil or the Seanad and they recommend that when the opportunity offers European Communities Road Traffic Compulsory Insurance Regulations, 1975, should be repealed and its terms incorporated into amending legislation.
Initially, in relation to the 1984 Regulations, the Joint Committee consider it most undesirable that the law relating to road traffic matters should be spread throughout different codes of legislation and propose to raise the matter with the Department of the Environment with a view to having all primary legislation contained in the Road Traffic Acts and all subordinate legislation pertaining thereto contained in regulations made under those Acts because otherwise it is not ideal, especially in those Acts with which large numbers of the public are confronted every day. The legislation here should be extremely clear.
All these statutory instruments bring us to the desirable ideal of greater harmonisation in the laws of Community countries. Indeed, Senator Smith in his speech put his finger on what is very dear to the heart of everyone in the country — the fact that duty on motor vehicles operating in this country is much higher than in most of our sister countries in the Community. If the Minister could find a way of greater harmonisation of the duties and taxes he would have the support and admiration and, indeed, the thanks of the motoring public, at least in the country. With greater communications and larger numbers of people travelling throughout the Community, it is important that the code of law of traffic regulations should be harmonised more closely. Transportation is an area that accounts for one of the highest percentages of the GNP of the Community. The Commission for Transport have dragged their heels to a greater extent than any other sector or division within the Commission itself. This is regrettable having regard to the huge cost of infrastructure and the importance of transport and transportation to the citizens of every Community country.
As a result of this report and the work put into it, I hope that the individual Ministers of the Government and Secretaries of each Department will note the views of the Joint Committee on the methods employed in implementing Community directives. Now that we are over 15 years members of the Community we should be entitled to expect a greater degree of accuracy, perhaps and a clearer system of implementing Community directives. I hope that a greater effort will be made towards harmonisation. If we, as citizens of the Community, are to win the greatest possible benefit from our membership, it can only come with a greater degree of harmonisation across the entire spectrum of legislation.
I compliment the Minister on his very clear and concise explanation during his speech on the report this morning. Towards the end of his speech he referred to the Milan European Council who decided that the qualified majority voting procedure should be deferred for a further six years to 1992. This is, perhaps, a deplorable deferral of that problem, which is certainly not included in the original Treaty of Rome. It was included in the Luxembourg Agreement some years ago as a greater insurance for the smaller countries such as ours, but, in fact, when we look at the record, we find that it is the larger countries who are using this facility for their own very narrow-minded nationalist sector interest. This is not in the spirit of the Treaty of Rome and I would hope that at some future meeting of the Heads of State it will be possible to bring forward that date because, unless a qualified majority voting procedure is implemented soon, we are going to find that reaching decisions in the expanded Community will become more difficult rather than easier as they ought to be.
I welcome the report and compliment the colleagues who have worked and studied the statutory instruments and produced an excellent report which I think will be of considerable benefit to the administration of Community laws in this country.
I would like to make a few brief comments. First, in common with other Senators who spoke before me I congratulate the committee for bringing forward this report and, indeed also, as was stated by Senator Smith, for bringing up to date a very serious back-log that existed vis-a-vis various matters they had to attend to. I would like to compliment the Minister on his precise and concise presentation which he made this morning covering the matter very effectively.
We are dealing with three areas in this report this morning — the Motor Traffic Act, the Cereals Act and the Land Act. One must strive, in so far as is possible, to have this harmonisation, to which reference has already been made, on various issues particularly in areas where the question of the safety of individuals is concerned. Page 4, paragraph 8 of the report states:
It is a serious defect in drafting to omit in a former Statutory Instrument under the European Communities Act, 1972 any reference to the secondary legislation of the European Communities under which the exercise of the power of making regulations under the Act ultimately depends.
In depth consideration must be given to ensure that we have matters that deserve and require regulations and proven discussion surrounding it from both Houses of the Oireachtas should come into play where that is necessary.
I would like to make a brief point on the cereal side. The committee has set out its position very clearly on page 6 of the report. It contains a certain amount of criticism with regard to the delay involved and the question of retrospection. There is also appended to the report correspondence from the Department of Agriculture, to which I do not intend making any lengthy reference except to say that this should be noted very carefully.
On the question of the Land Act, an aspect which we considered this morning and which has been considered in other reports as well, quite honestly this is an extremely important area. I am satisfied that the views of the committee are expressed quite clearly in the report and that we must take serious note of that.
It appears to be traditional to congratulate the committee on their work. My congratulations will have to be somewhat reduced in volume because of the failure to grasp the nettle with regard to these regulations. I should like to refer to the committee's reports and to the use by the Minister of powers under the European Communities Act and whether it is appropriate that it should be so used. There is no doubt that under the European Communities Act, 1972, there exists power for the Minister, under section 3 of that Act, to make regulations enabling section 2 of the 1972 Act to be implemented. That is to enable the Minister of the day to make sure that the domestic law is in conformity with the Treaty of the European Communities mentioned in that Act.
There are two aspects of this matter to which I should like to refer. One is a matter which was specifically referred to by the committee and the other is a matter which was not, in fact, referred to by the committee but, in my opinion, should have been referred to by the committee. Therefore, it is important that it should be brought to the attention of the House.
The committee, in page 2 of their report, quote from one of their previous reports — the 22nd report. It states during the course of that report that the Joint Committee accepts that ministerial regulations made under section 3 of the European Communities Act, 1972, May lawfully amend Acts of the Oireachtas, all statutes in force, if such is required by the Communities' secondary legislation of the European Communities which the regulations are to implement. However, the fact that the power exists ought not, in the opinion of the Joint Committee, mean that it is appropriate to use it in every case. This is correct. This power is there to enable Ireland to fulfil internationally its obligations as required from time to time. The normal position should be that, when we come to amending our own legislation, it should be done by way of Act of the Oireachtas. It is not just good enough to say, because the power exists to make a law by regulation under the European Communities Act, that the Minister should automatically do so. There was a time when I would consider that acceptable, but I do so no longer. The House may be aware that under the original European Communities Act, 1972, any regulations made had to be incorporated in an Act of the Oireachtas at a later date. That was done in 1973 in respect of the first lot of regulations. Under section 4 of the European Communities Act, 1972, the regulations under the Act would have statutory effect. Unless they are confirmed by an Act of the Oireachtas passed within six months after they are made regulations, they effectively stand repealed without validity to anything that might be done in the meantime.
In other words, while it is true that they got the force of law immediately, they had to be put into an Act of the Oireachtas together jointly, as was done in 1973, or individually, so as to give the elected representatives of the people the opportunity of expressing their view on it. In 1973 that was changed, and I think it was changed for administrative convenience. It was changed by the European Communities (Amendment) Act, 1973, which basically said that you did not have to pass any Act when these regulations were made. They will have statutory effect. If the Joint Committee on Secondary Legislation recommend to the Houses of the Oireachtas that any regulations under the Act be annulled and if a resolution annulling the regulations is passed by both Houses of the Oireachtas within one year after the regulations are made, the regulations shall be annulled accordingly. In other words, they stand unless the Joint Committee suggest and get the concurrence of both Houses of the Oireachtas that they should be annulled. There are additional provisions to cover the period when neither the Dáil nor the Seanad would be meeting. Leaving that aside for the moment, the normal position is that the Joint Committee are to consider it and make recommendations. Against that background, therefore, I fail to see, when the Joint Committee meet a situation which they consider to be unsatisfactory, why they do not take the bull by the horns then and say that they do not agree with it and recommend that it should be annulled.
In a very wishy-washy section, on page 5 of the report, the committee make reference to the European Communities (Motor Vehicles) (Registration of Importers) Act, 1968, Repeal Regulations, 1984. They state that the Department's explanation and assurance does not, in the view of the Joint Committee, expiate the serious deficiencies in this instance. They say that, but for the fact that it implements important Treaty obligations, the Joint Committee might have seriously contemplated exercising its statutory sanction of recommending annulment. Then why does it not do it? That is what it is there for. It cannot unilaterally do so merely by recommending an annulment which would go before both Houses of the Oireachtas and the matter would be considered. In the meantime, the regulation would continue to have effect. It is a further example of where the Members of this House and the Members of the other House are not willing to take the responsibility of their legislation-making powers seriously enough. We have the power to do that and we should exercise that power. In fact what would have happened if they had so recommended is that the Minister would of course change the regulation to conform with what the Joint Committee said was necessary. There is not much point in having a Joint Committee unless it is actually going to take action when it sees a problem. I think the history of the correspondence which we see is an indictment of the committee's capacity to take the ultimate hard decision. They certainly ask the hard questions but ultimately we are slipping to a greater extent into a situation in which we are being ruled by the Civil Service. We are ruled by Ministers who in turn are being influenced by civil servants.
Turning now to the second aspect of the regulations with particular reference to Statutory Instrument 367 of 1984. That statutory instrument is an extraordinary document because this statutory instrument which was never considered by the Houses of the Oireachtas repeals an Act of the Oireachtas. It does not repeal just a section of the Act; it repeals a whole Act. It wipes an Act from the Statute Book by ministerial order. That is a quite inappropriate — and this is a point not picked up by the committee — use of the powers contained in the European Communities Act to have regulations used to remove totally from the Statute Books an Act of the Oireachtas. That is within the scope of the powers but outside the intent of the use of the powers of the European Communities Act as amended by the Houses of the Oireachtas, as passed in 1972 and amended in 1973.
I do not think it is acceptable that any Minister should revoke an Act of the Oireachtas by statutory instrument. This Statutory Instrument 367 of 1984 is a most flimsy looking document. It should be brought to the Minister's attention that it is not considered good enough to repeal an Act of the Houses of the Oireachtas by a statutory instrument which may never come before us for consideration under the provisions of a catchall Act introduced at the time so as to ease the transition between non-membership of the EC and membership of the EC.
That brings me to the other point which the Joint Committee, in my opinion, should be addressing at this stage. I do not think there is any need now for the European Communities Act and it should be repealed. The abuse of the European Communities Act which has taken place should warn us that there lies here a power to Ministers which is far in excess of what is necessary. I think there is no reason for that power now that our transition has taken place. Where it is necessary to make regulations under Acts, if the power to make regulations exists under the principal Act itself or alternatively where it is necessary to enact new legislation, that should be done by the normal democratic process of introducing legislation into this House and into the other House and have it subject to full public scrutiny.
I wonder do people realise the full extent of the power contained in section 3 of the European Communities Act, 1972. In this regard I draw the attention of the House to one of the replies received from the Departments during the course of the excellent correspondence. The correspondence and the displaying of the correspondence reflects great credit on the committee. During the course of that correspondence a point arose concerning the question of the use of the European Communities Act and the application of the European Communities Act to the particular regulations which were being made. The point being made by the Department was that it was not necessary or there was no statutory obligation on them to express a view that it was a regulation necessitated by our membership of the EC under the European Communities Act, 1972. In other words, when the Minister decides to make a regulation under the European Communities Act in my opinion, it is necessary that he should have formed an opinion that it was necessary for him to make those regulations in order to conform with the Treaty. The question of whether the Minister did or did not form that view and whether it was a reasonable view is in fact capable of examination by the courts and I have no doubt that some time in the future the courts will consider these matters.
Leaving aside the question of the necessity for the repeal of the Act itself it is absolutely necessary that the Minister should form the view and should clearly state what his view is with regard to these matters. I do not think it is acceptable that a Minister should make regulations as, for example, European Communities Regulations, 1984, without ever indicating within the regulation itself or indeed in the explanatory note, that he has formed the view that it was necessary for him to make those regulations under the European Communities Act, 1972, as amended by the Act of 1973. For that reason I think the Minister is in error in that regard and the committee are correct in their assertion that it is necessary for the Minister to form a view in these matters and that the view being formed by him and the reasonableness of the view is subject to scrutiny by the courts.
Reference was made to the Minister's statement here this morning when he said:
I should like to point out, however, that such references are for the purpose only of giving information to the reader, and their omission does not affect the validity of the instrument concerned.
It may well be true that it does not affect the validity of the instrument concerned but that is not the same thing as saying that the Minister can only use the European Communities Act 1972 if he forms the reasonable view that it is necessary to make regulations under the Act for the purposes set out in section 2 of the Act.
In all these circumstances I think that the report of the committee, in so far as it exposes the problem to our consideration, is to be welcomed. In that regard I would like to join in the tributes that have been paid by the Members of this House to the committee for the work they did in that regard. In so far as it fires a warning shot across the bow of the Departmental officials concerning the explanation of regulations in the future it is also to be welcomed. However, in so far as it fails to do two things I think it is a little inadequate; it fails to tackle the general problem of the European Communities Act and its relevance to this country now that we are in the Community for 13 years, and secondly, it fails to tackle the very serious problem of the reasonableness and the use by the Minister of these powers under the European Communities Act for the purpose of amending primary legislation passed by the Houses of the Oireachtas and indeed repealing primary legislation passed by the Houses of the Oireachtas. I do not think that is proper. We should expect from the Minister that he would, in these cases, introduce a very simple Bill which would have the effect of amending the legislation in the normal way in which we expect legislation to be amended before this House.
With regard to the details of the instruments themselves, they are much too technical to be considered by a House of the Oireachtas in detail. For that reason the Joint Committee is the ideal place to examine this kind of regulation. I can only assume that they are necessary under the Treaty and are necessary in order to ensure that we live up to our Treaty obligations as members of the EC. The time has long passed where the use of the European Communities Act, 1972, for the purposes set out in section 3, should now only be used where a genuine emergency exists and that serious consideration should be given to its repeal, as being no longer necessary in the more stable conditions which now exist, now that the transitional phase of our membership of the European Community has terminated.
I just want to deal with one point, that is Protocol 7, which covers the cessation of the assembly of motor cars in this country and which was agreed when we got a 14 year period in which to adjust our position. When that happened it would be uneconomic for any assembler to stay in the business because their competitors were free from 1 January 1985 to import fully assembled vehicles which are produced by manufacturers and sold at a small margin. Many people in this country misunderstood the position because they thought that inevitably there had been a great loss of employment when this happened.
I would like to explode this myth. The IDA — I think they should get recognition for this — did a very good job in the setting up of other industries in this country to manufacture components. In fact, there are more people employed now in the manufacture of motor components, which are mainly for export, than there was when the motor assembly industry was flourishing. I would also like to pay tribute to Córas Tráchtála who found the markets for these components after the industries had been set up by the IDA. They have also done a very good job and they should get recognition for it. I would like to put that on the record of this House.
Sometimes when I come into this House and I commence a speech I find myself in the unlucky position of having to speak after Senator O'Leary. On occasion I disagree with him. I am in the most unfortunate position today that I speak after him and I find myself in total agreement with the comments he made with regard to the operation of section 3 of the European Communities Act, 1972. That is the nub of the contents of this report. It is probably the reason why we have a Joint Committee on the Secondary Legislation of the European Communities at all.
It is extremely important that the Houses of Parliament existing in this country, and existing in every other member state of the European Communities, operate as proper legislative bodies. In so far as we have lost that function it is important that our systems provide other bases within which the legislation which affects us — the legislation of the European Communities — is brought home to the citizens of the individual countries. It is extremely unfortunate that section 3 of the 1972 Act is used in such a wide way. One of the points made in the report before us this morning is a reference to the 22nd report of the joint committee appointed on 26 July, 1973. In the report before us there is a quotation from that committee's report which I propose to read into the record. I quote from page 2 of the report No. 16. The quotation is in turn a quotation from the 22nd report of the Joint Committee appointed on 26 July 1973. It reads as follows:
The Joint Committee accepts that Ministerial Regulations made under section 3 of the European Communities Act, 1972 may lawfully amend Acts of the Oireachtas or other Statutes in force if such is required by the Community secondary legislation, which the Regulations are to implement. However, the fact that the power exists ought not, in the Joint Committee's opinion, to mean that it is appropriate to use it in every case. Regard should be had to the relative importance of the statute to be amended and to the range of its application to determine whether the amendment should be affected by a Statutory Instrument or amending statute. In the case of a statute such as the Road Traffic Act, 1961, which is of such importance in the everyday life of citizens, the Joint Committee considers that any proposals for its amendment should be initiated by a Bill introduced in the Dáil or Seanad. It recommends that when opportunity offers the European Communities (Road Traffic) (Compulsory Insurance) Regulations, 1975 (Statutory Instrument No. 178 of 1975) should be repealed and its terms incorporated in an amending statute.
It is unfortunate that since that statutory instrument was introduced we have had at least two important Road Traffic Acts enacted by the Houses of the Oireachtas. Neither of these Acts included the provisions which were introduced by the particular regulations. I find it distressing that successive Governments and the Houses of the Oireachtas have had such scant and little regard for the recommendations of previous Joint Committees in this regard. One has to bear in mind the fact that the law of this country is becoming much more complex. That complexity is added to by virtue of European regulations. We could make our law a little easier to understand and a little easier to read if the Government, through the Stationery Office, were to publish, speedily and at least annually, a composite volume of Acts of the Oireachtas as amended by domestic statutory instruments and as amended by European legislation. We do not do that.
Senator O'Leary read into the record a statutory instrument which amended a particular Act. I refer to another now. That is the European Communities Employment Equality Regulations, 1982. It is a very short statutory instrument. What frightens me is that section 3 of that statutory instrument states as follows and I quote:
Section 11 (2) and paragraphs (c) and (d) of Section 17 (2) of the Employment Equality Act, 1977 are hereby repealed.
Given under my Official Seal, this 17th day of September, 1982.
GENE FITZGERALD,
Minister for Labour.
What is the point of our debating legislation in this House and in the other House if the Minister of the day can amend that legislation by instrument given under his seal of office? At least we should have the opportunity of debating every such instrument. The existence of every such instrument should, at an early date, be brought before the Oireachtas and Members should be given the opportunity of debating it and they should be advised of its contents. That is a point that the Government should act upon to ensure that we, as a legislative body, become more relevant and cease to be a type of rubber-stamping body whose decisions are very ineffective.
I want to refer briefly to two of the statutory instruments that are mentioned in the report. First, there is the European Community Licensing of Drivers Regulation of 1984. I think that regulation is to be welcomed and it is the type of regulation which brings all of us, within the Community, closer together in a practical way. Secondly, I want to refer to the Land Act, 1965, Additional Category of Qualified Persons Regulation. This regulation is somewhat different in the sense that it is a domestic regulation and that we have a Minister exercising power conferred upon him by an Act of the Irish Parliament. I welcome the existence of that regulation and I am glad that the Minister has extended the list of qualified persons existing by virtue of section 45 of the Land Act, 1965. It is a pity that the Minister of the day in doing that had to be propelled by court action into taking that decision. It is also a pity that since our accession to Europe many non-Irish Europeans who attempted to buy land for productive purposes, land which was not being used, were prevented from doing so. I am glad that the existence of this regulation will at least make that position a little easier.
I welcome the report and I commend the committee on their work. I conclude by stressing my extreme worry at the constant use of section 3 of the 1972 Act and I hope that the Minister can give the House an assurance that his colleagues in this Government and in future Governments will use that power with greater restraint and that in so far as European decisions have to be implemented in a legislative sense in this country we will have the opportunity of doing it within the Houses of the Oireachtas rather than having to accept regulations about which immediately we know little.
In concluding this debate I would like to thank the Senators for their very constructive contributions. I can assure the Members of this House that I have listened to them with great interest. I have taken very careful note of the specific points which have been raised. As Senators will understand, points refer to different Departments and the best assurance I can give the House is to confirm that I will arrange to have the appropriate points passed on to the relevant Ministers and their Departments.
I would like to take up a point raised by Senator McDonald in relation to the Luxembourg Council. He was talking about the time scale for the implementation of qualified majority voting and mentioned, in disapproving terms, the time scale which he said extended to 1992. In fact, the year 1992 does not refer to the time scale for the introduction of qualified majority voting. On the contrary, it refers to the target date for the achievement of the single internal market. Of course if the single internal market is to be achieved by 1992 it is generally agreed that the qualified majority voting will have to be put in place straight away.
As I mentioned in my opening remarks the position is that there are still two reserves on the conclusions of the Luxembourg Council. Our friends in Denmark in particular have a problem. Senators were talking about the question of the power of the Executive as opposed to the power of the Legislature. In Denmark they found that the views of the Prime Minister were not immediately acceptable to the Legislature. As I understand from recent discussions with Danish colleagues, they now propose to have a referendum late next month in an effort to sort out the matter. This arises from the point raised by Senator McDonald. I would reiterate my view and that of the Government, and probably of the Opposition as well, that even though occasionally problems in sectors can arise or in relation to specific products, it is in our overall national interest to move as quickly as possible towards the single market without any restrictions on trade. That relates to our position as a major exporter and the possibility of further jobs in the manufacturing sector resulting from the opportunities for increased exports.
I enjoyed Senator O'Leary's remarks. As usual he was interesting and perhaps a little provocative. Senator Durcan seems to be ad idem with Senator O'Leary in his broad approach. Both Senators raised quite a serious point. Perhaps it is one that has not been discussed at a serious level sufficiently in this country. I appreciate that at the administrative end there is, of course, with the mass of regulations or procedures that have to be adopted, great pressure to try to find the easiest and quickest way of having these European directives or regulations translated into our national law. In any democracy one has to watch the trend whereby the easy and quick way may in fact be removing too much power from the Legislature.
I took careful note of the points raised. I cannot give a Government viewpoint on that particular issue. It has just been raised here but it is one that I will dwell on and discuss with colleagues as to whether there should be a more effective procedure enabling both Houses to have a greater input into and a greater effect on the implementation of these Community directives. One suggestion made was that annually or bi-annually an Act would be put before the Oireachtas which would enable regulations which had been temporarily introduced to be discussed and, if not approved by the Houses of the Oireachtas, that these particular regulations will then become void and have no effect. That is a suggestion that can be usefully looked at. While I cannot give any commitment on behalf of the Government, I will certainly arrange to have the matter discussed with my colleagues.
I thank the Senators for their contributions to this interesting debate.
Question put and agreed to.