Seanad Éireann debate -
Thursday, 8 May 1986

Vol. 112 No. 8

Report of Joint Committee on the Secondary Legislation of the European Communities — 33 Statutory Instruments: Motion.

Professor Dooge

I move:

That Seanad Éireann takes note of Report No. 23 of the Joint Committee on the Secondary Legislation of the European Communities: 33 Statutory Instruments."

Normally it is only the function of the Leader of the House to move formally such a motion and thus allow the debate to proceed with contributions from those Members of the House interested in the topics raised by the reports of the joint committee whether they are members of the joint committee or not and to allow the appropriate Minister to comment on the report in the light of Government policy, Government decisions and Government thinking on the question. Nevertheless it is right that in moving Motion No. 1, noting this report on Statutory Instruments, I should deal with the matter at somewhat greater length. I do not know if Senators have realised that in the period since the Joint Committee on the EC has been in operation — they only really commenced their operations in the autumn of 1984 so that it has only been operating for just over two years — they have reported to this House and to Dáil Éireann on 176 Statutory Instruments. This represents a very large volume of work and should represent to this House as it were, a large volume of concern that this amount of indirect secondary legislation is being handled in the manner that it should be handled.

Accordingly, I want to call the attention of the Seanad in particular to paragraph 2-9 of the report that is before us this morning dealing with the general question of the implementation of EC directives. We look back at what is the basis of this particular process which gives rise from time to time to reports such as the report we have before us this morning and which has, as I have indicated, in just over two years, resulted in the examination by the joint committee and the forwarding to the Houses of the Oireachtas of almost 200 Statutory Instruments. I would ask the House to look at the basis under which this is done. The statutory basis is simplicity itself. It is dealt with the European Community's Act of 1972 and section 3 (1) of that Act reads very simply:

A Minister of State may make regulations for enabling section 2 of this Act to have full effect.

Section 2 of the Act from which I am quoting of course was the Act which gave to existing and future Acts of the Institutions of the EC binding force on the State and made them part of our domestic law. Section 3(2) of the European Community's Act goes on to say:

Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).

That then is the statutory basis of the procedure with which we are concerned.

When it comes to the application of that in practice we come to the very important distinction between Regulations of the EC and directives of the EC. The main point that has come up from time to time in the reports of this joint committee, to which I want to turn your attention today, arises from the difference between Directives and Regulations and from the fear expressed on a number of occasions by the joint committee and indeed by their predecessor that by acting in a certain way we may, in respect to our domestic law and in respect to the rights of our own citizens, turn a more permissive Directive into what would have the effect of a more rigorous Regulation. Article 189 of the Treaty to which the 1972 Act gives force in this country says that:

A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

In the case of a regulation the whole of the regulation, every clause of it, every word, and the meaning of that word as interpreted by the Court of Justice is applicable to our State and becomes part of our domestic law. On the other hand, Article 189 says of a directive 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.

What we are concerned with then as a directive is that an objective agreed by the Community must be implemented in our domestic law, but we have far more discretion because I quote again:

but shall leave to the national authorities the choice of form and methods.

Accordingly the distinction is a matter of very great importance. We should be extremely careful in the form and the methods in which we implement directives in order to ensure that we maintain the maximum amount of flexbility, in order that having willingly surrendered a certain degree of our parliamentary sovereignty to Europe and willingly surrendered it in return for the greater good that results from this, we do not surrender any more of our parliamentary sovereignty than is needed under the Treaty. There is a duty in this regard on the Government. There is a real duty on this House and on the other House through the agency of the Joint Committee on the EC to ensure that this position is maintained.

Accordingly, I want to ask Seanad Éireann this morning to pay particular attention to what has been said on this point from time to time by not only the present joint committee whose report we are considering today but previous joint committees.

There is a situation that has to be faced here. I do not want anyone to think that what I am saying is that we have unduly surrendered any part of our sovereignty in this regard. My concern rather is that our approach to this problem — it would appear that we have not suffered in this regard — has been ad hoc and individual, that we have had the implementation carried out in individual Departments. When I have indicated what I see to be the nature of the problem to be satisfied my urging to the Minister would be that there should be a broad look at this particular problem and that those who are concerned, the Department of Foreign Affairs, the Department of Finance, who have a co-ordination role also in regard to this, and the Office of the Attorney General, who are advising individual Departments in regard to individual instruments, should come together, treat this problem as a whole and adopt certain standard guidelines in regard to it.

There is some element of concern here. The joint committee which sat from 1973 to 1977 devoted the whole of their 11th report to the question of the implementation and direct applicability of Directives. This report of July 1975 is Prl 4669 and I propose to quote from paragraph 6:

The Joint Committee's concern is to see that the power of the Oireachtas, as the sole legislative body in the State, is curtailed only to the minimum extent necessary to meet the Treaty obligations. It would prefer a simple rule that all Directives should be implemented by statue or statutory instrument except where existing Irish legislation already provides the necessary authority. It is not entirely convinced that the direct applicability of some Directive provisions does more than add another dimension to the accepted supremacy of Community law over national legislation in the areas covered by the Treaty. If, however, the Government considers that it would be inadvisable to seek to incorporate a provision in Irish law because it is advised that it is directly applicable by virtue of the community instrument, the Joint Committee believes that the Houses of the Oireachtas have no grounds for objection. It considers, however, that it is the duty of the Executive to ensure that, where a Community Directive is implemented without the intervention of domestic legislation its provisions are either directly applicable or are already covered by existing legislation.

This is the point to which we must give some concern. Again, the same committee in its 30th report, Prl. 5419, returned to this question.

Sitting suspended at 10.55 a.m. and resumed at 11.5 a.m.

Professor Dooge

I had talked of the comments made in paragraph 6 of the 11th Report of the Joint Committee on the EC which sat from 1973 to 1977. This committee returned to the subject in its 30th report of April 1976 and I propose to quote from paragraph 3 of that document, which is Prl. 5419. Paragraph 1 of section 3, under the heading Consistency in Implementing Instruments is as follows:

This country has now had over three years' experience in implementing Community secondary legislation by domestic statutory instruments. It might have been expected, therefore that a uniform approach would have been evolved by now in dealing with the various problems which this exercise entails. The Joint Committee is not satisfied that this is the case.

It goes on further in paragraph 3 to deal with examples of inconsistency. Section 3 in its final paragraph reads:

No doubt drafting problems of the type referred to in the preceeding paragraphs are difficult to resolve in the absence of judicial interpretation, but the lack of a consistent approach is confusing. The Joint Committee considers that this matter should be examined to see if it is possible to agree upon a uniform and a consistent approach.

The reading of subsequent reports and the reports which have been submitted by the joint committee established by this Oireachtas — there have been four reports in all dealing exclusively with statutory instruments — indicated to me that there has been a degree of improvement in regard to the situation as it existed in 1975-76, but it does not appear that the matter has been completely resolved to the satisfaction of the members of the joint committee. One can see this if one refers to paragraphs 4 to 6 of the report we are dealing with at present. For the sake of completeness I will read into the record the concerns expressed in the report. Paragraph 4 reads as follows:

The Joint Committee considers that, while it is essential to cite the title and the relevant Directive when making and implementing Ministerial Regulations, the Regulations should themselves be self-contained and should set out in terms normally used in Irish legislation what obligations are being imposed or what rights are being conferred on individual citizens.

This is an important point because there has been a tendency in the implementation of directives to use the actual language of the directive in regard to the further implementation. When we remember that what is important here is the objective of the directive and our obligation to implement this in the manner appropriate to our own law and circumstance there must be some degree of anxiety in this regard. There must remain anxiety that even if it is less convenient, even if it does take more time, self-contained legislation drafted in language which has been judicially interpreted in our domestic legislation would be preferable. Further on, in paragraph 4 the joint committee in the report we are considering go on to say:

The Committee does not see that there can be any legal or practical barriers to adopting this course. The Treaty explicitly leaves "to the national authorities the choice of form and methods" and the Department concerned deciding on "the result to be achieved" has the benefit not merely of the text of the Directive but the knowledge gained from participation in the Council Committee which examined the Directive when it was in draft form. It should, therefore, be possible for the Department concerned to issue precise instructions to the draftsman so that he does not have to rely on the text of the Directive.

The latter remark is an interesting one. Left to himself the parliamentary draftsman will rely on the terms of the directive. In doing so he may leave our means of implementation — in which we have a degree of freedom — of the objective of that particular directive subject to an interpretation of the European Court rather than subject to the interpretation of our own courts. Of course, the question of whether we meet the objective must always be subject to the interpretation of the European Court but as regards the detail and manner in which it is done, we are free to act in our own manner.

In paragraph 5 of the present report, the joint committee go on to say:

The Joint Committee has noted that in most instances Ministerial Regulations implementing EEC Directives seek to incorporate the Directive into Irish law sometimes in its entirety and more usually in part. For example, these Regulations often provide that terms of the Directive shall be complied with, thus making those terms directly applicable and binding on Irish citizens. It is also common practice to provide that a word or term used both in the Regulations and the Directive shall have the meaning it has in the Directive which, it seems to the Committee, has the effect of attracting the jurisdiction of the European Court in any justiciable dispute as to the meaning of the Regulations.

In paragraph 6, the last paragraph that I intend to quote, it says:

The Joint Committee considers the effect of this current practice is in many instances to give to EEC Directives the status of the EEC Regulations within the Irish legal system.

This is the point of principle. It may well be that we will have to struggle through long negotiations in Brussels in order to ensure that a particular matter is not the subject of a European Regulation which will be completely binding on us but rather the subject of a European Directive. We may agree with the objective, but because of certain circumstances, whether it be our remoteness on the periphery, whether it be our present state of development, whether it be the level of our national income compared to many of our partners, all these may have been factors in which we will have negotiated hard to say that it is appropriate in this case to allow for the differing circumstances, to have argued, and argued successfully in Europe that what should be agreed upon should be a European directive and not a European regulation.

The danger here is that by our subsequent action we may throw away much of that advantage. Those reasons are known to the officials and to the Minister who took part in those negotiations but if the matter is sent merely to the Attorney General and to the parliamentary draftsman without a briefing to this effect his simplest way of doing the implementation is to follow the language of the directive. It is a point that not only should the executive be concerned with in order that perhaps a hard-won piece of negotiation is not inadvertently lost in part due to subsequent action, but it is also the concern of this House. It should always be our concern that the manner in which the Irish regulations are made should reflect in full the legislative supremacy of both Houses of the Oireachtas.

We have here a point of principle. It should be decided as a point of principle and not decided piecemeal in regard to each of the 176 cases where Directives are implemented according to our local conditions. The questions will never be properly faced if we continue to act in a piecemeal manner.

Accordingly, I am asking the Minister if he agrees with me, that there is a matter for concern here that he should seek to have it dealt with in a global rather than a piecemeal matter. If he does not agree with me intellectually, he might be kind enough to put my worries at rest by doing so. It is a question that involves the manner in which the Attorney General and the draftsman's office act in this regard but I have had to indicate that if we treat it merely as a question of legal implementation they will look at each case on its own; that they will look at the documents before them. As I have tried to indicate, there is much more of importance than this.

It takes long enough to get a European directive. We end up with a text with maybe 100 words. How many 100 hours of discussions took place before those 100 words were agreed upon? If the result is an EC Regulation then there is no option: that comes into our law. If these 100 hours of discussions result in an EC Directive, then we are bound by the objective but we are not bound by the detail and we are not bound by any particular manner of implementation. The question arises of what should be the best manner of implementation from the point of view of the rights of Irish citizens, from the points of view of the rights of the Houses of the Oireachtas to the functions they hold under our present position relative to the EC. In regard to these points a good deal of what was said in those 100 hours of discussions may be relevant to the drafting of the Irish regulation that implements an EC Directive.

This is a question that should be taken up. It is not merely then the Attorney General who is concerned. The Minister's Department is particularly concerned because of the co-ordinating function they have in regard to EC matters. There are also a group in the Department of Finance who exercise some degree of co-ordination. Every Department whose responsibilities are impinged on by an EC Directive are concerned with this.

This point is the main point. If this exercise were to be undertaken of bringing together under some umbrella all of those concerned for the purpose of this discussion, advantage could also be taken of issuing guidelines for uniformity and consistency in regard to these. I do not want to go into it in detail but if one goes back through the four reports that we have had from the committee set up by this Oireachtas, there are repeated references to what are considered to be deficiencies in regard to notes of explanation, deficiencies in regard to citation, criticism in regard to the question of the levying of fees and the imposition of penalties. If such an exercise were to be undertaken, all of these things could be looked at at the same time. The one exercise could leave us in a far stronger position.

I do not want to suggest that I think there has been no improvement in regard to this position. There has been an improvement since this matter was first raised in the Eleventh report of the 1973-1977 committee. It is not sufficient that there should be individual cases of improvement in individual Departments. It is time to tackle the whole problem, to tackle it thoroughly, so that we could on a future occasion receive a report from the joint committee on the EC indicating that this problem has now been solved. I could make a much shorter speech in just expressing in one sentence my satisfaction that there no longer was a problem. I commend the report to the House and I commend the difficulty that I have raised for the Minister's consideration.

Mr. Fitzsimons

I am glad of an opportunity to make a brief contribution on this report. I listened with great attention and interest to Senator Dooge. He has great experience and knowledge of that area which I do not have. He was able to call on this erudition in making that very interesting contribution. My approach is from a layman's aspect and practical point of view. I would like also to cover some of the ground with regard to what Senator Dooge has said.

The joint committee, comprised of 18 Deputies and seven Senators, have been working very hard, as Senator Dooge has also pointed out. This report is dated 18 December 1985. A report on 200 statutory instruments in two years speaks for itself. Thirty-three statutory instruments were examined by the subcommittee under the chairmanship of Deputy Maurice Manning. I would like to pay tribute to that subcommittee and in particular to Deputy Manning for this report. While it is not as lengthy as the previous ones that came before the House—it is in the order of 15 pages—in its own way it is equally important.

With regard to the particular observations offered in the report on five of the instruments, it is a pity that there is no comment on the remaining 28 instruments. I find it difficult to understand that 28 statutory instruments, brief and all as some of them may be, would not deserve some kind of comment by the Joint Oireachtas Committee. I also feel that in the reports which are furnished to Members of both Houses, it might be possible in future to include copies of the statutory instruments. I find some difficulty in getting the statutory instruments. I understand they are only available through the Government Publications Sales Office. Perhaps they are available in the Oireachtas library. Sometimes these reports, while they are on the Order Paper for a long time, have a habit of suddenly disappearing. That does not give the staff in the Library a fair chance with regard to getting copies of the statutory instruments.

With regard to the EC directives and regulations, the report is convincing in this area. There is some dichotomy and as Senator Dooge has said, maybe not in so many words, but my understanding of what he said is, that there is considerable room here for improvement in the lines taken by the Joint Oireachtas Committee. My understanding of the directives would be broadly the same as Senator Dooge's. There is some considerable discretion left with the member state with regard to implementing the directive. On the basis of this report with regard to EC regulations, it might be generally necessary to enact legislation to cover the obligations of the regulations. That was one significant difference that I thought of.

If I could go very briefly over my understanding in this area, the committee told us that, in their experience, the most significant use made of the power conferred by the European Communities Act, 1972, which was spelt out in detail by Senator Dooge, is in making regulations for the purpose of implementing the EC directives. We are told that a directive shall be binding as to the result to be achieved upon each member State, but that the national authorities have the choice of form of methods. This is the discretion that was already referred to. Therefore, when a directive becomes binding on a member state as soon as it has been adapted by the Council or the Commission, it does not in the usual way, impose obligations on individual citizens until the choice of form of methods has been made by the appropriate authority, which I take to mean the statutory instrument. With regard to this area, too, I must say also that I would share the views of Professor Dooge with regard to the draftsman following the language of the directive. From a layman's point of view, I concede the points made in this report, that by so doing all chances of a mistake would be eliminated. In other words, they would be keeping precisely to the same working. I find a difficulty in that area. While I do concede the points made, it does seem to me that by so doing, that problem is eliminated or perhaps a different interpretation or a different emphasis is placed. Therefore, we would have uniformity.

If that choice involves changing the national law, as it sometimes does, the national authority in this country must make the choice in the Oireachtas. With regard to statutory instruments the Oireachtas has delegated this power to the Minister. The Houses of the Oireachtas have retained, through the agency of the joint committee, supervision to some extent of these regulations. The joint committee have a very important function. It seems that the Minister, in getting this power, which is really the power of the Oireachtas, in relation to directives, has an enormous power in one sense. While he is of course, restrained to the terms of the directive — and I am sure that the statutory instruments being laid before this House, have some sense of supervision — I am not sure if we give sufficient time to them. In that respect the Joint Oireachtas Committee have a very important part to play.

With regard to the regulations, the report tells us that sometimes a statutory instrument is used to enact consequential provision arising from the adoption of the EC regulations. By virtue of Article 189 of the EC Treaty and EC Regulations it shall have general application and shall be binding in its entirety and directly applicable in all member States. Unlike the EC directive an EC regulation may impose obligations on individual citizens as soon as it comes into effect, on adoption by the Council or Commission. This is the area that I spoke about. I felt that in making it effective within the national legal system, the EC regulation may require supporting national legislation, for example, to provide for penalties and non-compliance, or to set up appropriate administrative procedures. This is spelt out in the committee's report. Such legislation in this country usually takes the form of Ministerial regulations. Senator Dooge has gone into that in detail.

The joint committee feel that while it is essential to cite the title of the relevant directive, when making and implementing ministerial regulations, the regulations should themselves be self contained and set out in terms normally used in Irish legislation, what obligations are being imposed or what rights are being conferred on individual citizens. The draftsman has an important role to play here. It is a difficult role also. I feel it must be an almost impossible task to determine the correct etymology and subtleties of the various words used. Indeed, to my mind it is a soul-destroying task but nevertheless, a very important one.

The committee point out that they do not see that there can be any legal or practical barriers to adopting this course, that is, to have a framework on the terms of the national legislation. I cannot see any difficulty either except that I do not see any reason to do that. Common sense would seem to indicate that in so far as possible it would be a good principle to keep it as near as possible to the directive. The treaty explicitly leaves to the national authorities the choice of form and methods. The Department concerned in deciding on the result to be achieved have the benefit, not merely of the text but the knowledge gained and the participation in the Council committee which examined the directive. As has already been said, it should be possible for the Department concerned to issue precise instructions to the draftsman so that he does not have to rely on the text of the directive.

The joint committee has also pointed out instances where ministerial regulations implementing EC directives seek to incorporate a directive into Irish law, sometimes in its entirety, but more often in part. For example, these regulations often provided that the terms of the directive shall be complied with, thus making the terms directly applicable and binding on Irish citizens. We are told that it is common practice to provide that a word or term used both in the ministerial regulations and the directive shall have the meaning it has in the directive, which the committee seem to think has the effect of attracting the jurisdiction of the European Court in any justifiable dispute as to the meanings of the regulations. I cannot see any problem in this regard. We are bound, I presume, by the European Court: I am not too sure why the committee take such exception to the exact wording. The joint committee also feel that the effect of this common practice is in many instances to give to the EC Directive the status of the EC regulations within the Irish legal system. I can see a problem here. If that result was what was intended, the Commission or the Council would have adopted a regulation and not a directive in the first instance. In the committee's view Irish ministerial regulations should reflect the legislative supremacy of the Oireachtas within the national system.

I can see that point — that it is very important to retain whatever power we have. Most of it has been submerged in the European Parliament. Much of it has been handed over. I agree that it is necessary to retain whatever power we have. Also, I can see that we want to remain as individuals. We want to retain that sense of individuality. In that sense I can see the point, but overall I am not too sure that I can understand where the great loss is. The Department have replied at length to those observations and the committee is still not convinced that there is any need to change its views. It does not accept that the limited discretion left to national authorities by a particular directive or the convenience of implementing authorities should be a determining factor. Then the Committee state very importantly that it would like to make it clear —

— that it is not raising objections to the Regulations in question on the grounds that they were not within the competence of the Ministers concerned. What the Committee is suggesting is that there is an alternative method of implementing Directives which would better reflect the legislative supremacy of the Oireachtas in the domestic sphere and make it easier for persons affected to be aware of their obligations under Irish implementing legislation.

In the reply from the Department of Finance it was pointed out that the matter was to be placed before the Office of the Attorney General. I feel that, perhaps, while there is a problem about time that it might be reasonable to expect that we would have some indication from the Office of the Attorney General as to what the views of that office would be. However, it is an ongoing situation. I am sure that in due course the views of the Attorney General will be laid before the House.

The committee goes on to criticise some explanatory notes. It pays tribute in some cases where amendments have been made to explanatory notes previously criticised and where alterations have been made in view of the reports of the committee. It points out with regard to an explanatory note in section 11:

The explanatory note appended to the European Communities (Repeal and Revocation of Certain Provisions) Regulations, 1985 reads:

"These regulations revoke the statutory requirements relating to the origin marking listed in Regulations 2 and 3 of the Regulations."

It goes on to say:

In the Joint Committee's opinion this note is quite useless and gives no information that could not be gleaned from a casual reading of the instrument which itself consists entirely of legislation by reference.

This is quite strong criticism and I am sure it is justified. Certainly, from the point of view of a lay person with no expertise in this area I would welcome simplicity and anything that would help towards a better understanding with regard to the information given.

In the committee's opinion, the explanatory note should have indicated what in practice the changes made by the instrument amounted to, and why these changes were necessitated by the court's decision. This would not have been too difficult. It is something that we would all welcome.

The report pays tribute to the Minister for Agriculture for the amendment of two instruments and I would join in welcoming that also.

I would just like to make reference to one of the statutory instruments. It is a very brief reference. That is No. 1 of the statutory instruments: Wild Birds Regulations, 1982: Statutory Instrument No. 241 of 1982. I understand that the EC have made general regulations with regard to wild birds. Some of the species may be in danger. I also believe that other species for which there is a preservation order would be of a type that we could regard as predators or, perhaps, vermin in this country. I know that gun clubs, which do a very good job in this area, have some power with regard to the containment of this type of bird. I fail to see why there should be a global injunction imposed on all the member states with regard to wild life. I can see the purpose of the statutory instrument. I can see that birds might be in danger in one country but their numbers would be a problem in another country. I would like the Minister to indicate what scope there is with regard to the statutory instruments in relation to wild birds. I know from personal experience through the gun club in my native town of Kells that with regard to one statutory instrument — I am not sure if it is this particular statutory instrument — there was serious concern regarding the type of bird preserved. There should be some simple way to make provision for clubs who would have a problem with regard to one type of bird or another.

That is all I wanted to say. I welcome the report. I pay tribute to the members of the committee for their hard work. Perhaps some of these statutory instruments are not of much practical benefit with regard to any member state. For example, Statutory Instrument No. 228, 1985, which deals with the European Communities (Units of Measurement) (Amendment) Regulations, 1985 reads:

The European Communities (Units of Measurement) Regulations, 1983 (S.I. No. 235 of 1983) are hereby amended by ...

and it states:

"Unit of Length: The metre is the length of the path travelled by light in vacuum during a time interval of 1/299 792 458 of a second".

I am sure that for scientists, for somebody of the erudition of Senator Dooge, this may be of great interest. I am not sure what practical benefit it is to the ordinary individual and if there is such a person as an ordinary individual.

Perhaps from that point of view it might be possible for the joint committee to make a meaningful reference to the 28 reports I mentioned. They have been very busy. They have performed a very good task and I look forward to the following reports, to see in what way their recommendations with regard to this report have been implemented.

Minister of State at the Department of Foreign Affairs (Mr. G. Birmingham)

Perhaps I can begin with Senator Fitzsimon's penultimate point and join with him in thanking the joint committee for their efforts and for having produced another very detailed, very fine and thoughtful report. In thanking the committee, I include Senator Dooge and Senator Fitzsimons for their contributions here this morning. There was an underlying accord in their contributions and their general approach was quite similar. They differed in one respect, and in that respect, while something of an agnostic, I would lean in favour of Senator Fitzsimons and lean against Senator Dooge.

Report No. 23, deals with 33 statutory instruments made in implementation of Community legislation in Ireland. While the committee have made detailed comments regarding only five of the statutory instruments they have examined, I am conscious and appreciative of the detailed work the committee's role inevitably entails. It is a little unfortunate that none of those Senators who were members of the committee contributed to the debate this morning. Their particular backgrounds and their telling us of the way in which they approached their work might have been helpful. Senators will be aware that the statutory instruments in question relate to the responsibilities of several Ministers and their Departments.

The committee, in their comments, and the contributions this morning also, examined and addressed themselves to two particular issues, first, the methods by which EC directives are implemented in this country and, secondly, the nature of the explanatory notes accompanying statutory instruments. Let me take up the committee's views and the contributions this morning on both of those questions.

With regard to the first of these issues the joint committee made a number of observations and recommendations. They comment in particular on three statutory instruments: the European Communities (Customs) Regulations, 1984 (Statutory Instrument No. 365 of 1984); the European Communities (Customs) (No. 2) Regulations, 1984 (Statutory Instrument No. 366 of 1984); and the European Communities (Stock Exchange) Regulations, 1984 (Statutory Instrument No. 282 of 1984). The first two regulations were made by the then Minister for Finance to give effect to certain provisions of Council Directives. The provisions concerned specific procedures designed to simplify, in certain limited circumstances, the formalities applicable to the importation and the exportation of goods. The last named regulation was made by the then Minister for Industry, Trade, Commerce and Tourism and was designed to give effect to three separate EC Council Directives relating to Stock Exchanges.

Reading the report, it seems that three basic points were made in relation to those instruments. First, the committee express the view, in paragraph 4 of the report, that, while it is essential to cite the title of the relevant directive when making and implementing ministerial regulations, the ministerial regulations should themselves be self-contained and should set out, in terms normally used in Irish legislation, what obligations are being imposed or what rights are being conferred on individual citizens. They consider, in this regard, that it should be possible for the Department concerned to issue precise instructions to the Parliamentary Draftsman so that he does not have to rely on the text of the directive. This, again is a subject that was raised this morning.

In response to this point, let me say what the existing practice is and then take up some of the comments made. The practice is that ministerial regulations made under the European Communities Act, 1972, to give effect to Community directives, do so by reference to the relevant provisions of the Community directives where these provisions are considered to be of such a nature as to make this course appropriate. That is done instead of reproducing those provisions of the directives in the ministerial regulations themselves. Furthermore, the ministerial regulations always provide the relevant references to the Official Journal of the European Communities under which the directives are published and this can be obtained from the Stationery Office. For the information of the Senators, I would remind them that the Oireachtas Library is a depository library for the Official Journal. In these circumstances I submit that the current practice is reasonable. It would be difficult to justify its abandonment in favour of a practice which involved the necessary reproduction in ministerial regulations of the contents of the directives, as has been suggested by some.

In paragraph 5 of their report, which is one of the paragraphs to which Senator Dooge made reference, the joint committee go on to observe that in most instances ministerial regulations implementing EC directives seek to incorporate the directive into Irish law, sometimes in its entirety and more usually in part. The committee noted also that it is common practice to provide that a word or term used both in the ministerial regulations and in the directive shall have the same meaning as it has in the directive. This is the subject on which Senator Fitzsimons and Senator Dooge took somewhat differing views. Senator Dooge, who spoke in accord with the majority of the committee, was concerned that that seemed to have the effect of attracting the jurisdiction of the European Court in the event of any justiciable dispute as to the meaning of a ministerial regulation. What the committee are suggesting, and what I understand Senator Dooge is suggesting, is that not only should ministerial regulations reproduce the substance of EC directives but that they should then do so in terms normally used in Irish legislation. There is, of course, an argument to that effect. In some instances it is an argument which is very cogent and very compelling. Senator Dooge has made the point that in particular circumstances to simply follow the precise language of the directive could have the effect of upgrading the directive into a regulation in all but name and that in so doing advantages which have been gained in negotiation could thereby be forfeited. I accept that that is something that can happen in theory. The report accepts, perhaps with less than enthusiasm, the fact that an approach of this nature is ad hoc. For ad hoc I would prefer the word “flexible”. What that means is that we are able to adopt the approach that is most suited to the particular circumstances. If the experience of the consideration of the directive in the working groups and in the council indicates that there are sensitivities or particular areas of concern and that it is an area where we need to optimise our room for manoeuvre, we should take account of that in deciding in what form we will implement the directive. That has happened in the past. In so far as the danger has now been highlighted in the report and in Senator Dooge's contribution that is worthwhile and it puts people on notice of what the implications of failing to consider the question could be in some circumstances.

The case against was put by Senator Fitzsimons who said that it makes common sense to stick to the same language because everyone knows where they stand in that situation. In many cases that argument has a great deal of force. What we are concerned about here is trying to achieve the maximum degree of certainty. Individuals or enterprises seeking to order their affairs want to know with some certainty what their obligations are and how those obligations are likely to evolve. It seems to be a situation where the same language and the same approach is adopted lends itself to that degree of certainty and to a uniformity of interpretation. That seems to be quite desirable.

The comment was made that adoption of this approach is likely to involve the European Court more than might otherwise be capable of being avoided. Perhaps. Far from being a disadvantage such a method has some strength and some advantages. In particular, it lends itself towards a uniform interpretation and application of community law. That is a very substantial point in its favour. Even if one accepts the arguments of the joint committee and Senator Dooge's arguments that references to the European Court concerning the interpretation of directives are to be avoided it seems to be extremely doubtful that the suggestion the committee makes even were they to be followed would avoid such references. An Irish Court of first instance which considers that a question arose as to the consistency of the Ministerial regulations under the European Communities Act with the provisions of a directive could and would if it saw fit seek the guidance of the European Court as to whether the directive has been correctly implemented. An Irish court of final instance, the Supreme Court in most cases, would be obliged under the Treaty to seek guidance in such a case.

The next question raised by the committee — paragraph 6 of the report — is where the joint committee expressed the view that ministerial regulations should reflect the legislative supremacy of the Oireachtas within the national system, a principle from which none of us would for a moment dissent. In effect what the committee was suggesting is that where there is an alternative method of implementing directives which will better reflect the legislative supremacy of the Oireachtas in the domestic sphere, that should be taken and by doing so make it easier for persons affected to be aware of their obligations under Irish implemented legislation.

I find myself part of what I take to be a complete consensus in agreeing that the legislative supremacy of the Oireachtas should be reflected in ministerial regulations. However, I do not accept that the making of statutory regulations in the form referred to in the joint committee's report fails to reflect the legislative supremacy of the Oireachtas. The regulations in question are always made pursuant to powers which have been conferred on Ministers by Acts of the Oireachtas, most specifically the European Community directive of 1972 and the subsequent legislation. The regulations are always grounded in and rooted in the supremacy of the Oireachtas.

What we have here is a somewhat wider question than simply the relationship of comestic law and European law. What is really at issue is the whole question of delegated legislation. It is the case that over many years the Houses of the Oireachtas and other Parliaments have delegated very substantial law-making powers to subordinate bodies and specifically to Ministers through ministerial orders. The question of the extent to which Parliamentary control remains effective is one that rightly concerns us. While not agreeing with the details of some of the comments made by Senator Dooge, I am in full philosophical sympathy with the approach he takes. I hope that that will put him at ease.

The second point raised by the joint committee was the nature of the explanatory notes that are appended to statutory instruments. The comments of the committee with regard to the contents of a number of the explanatory notes have been noted. Senators will recall that the committee made reference to two statutory instruments which were made by the then Minister for Industry, Trade, Commerce and Tourism. Favourable comment was made in relation to one, namely, the Merchandise Marks (Prepacked Goods) (Marketing and Quantities) (Amendment) Order, 1985. The committee regarded the explanatory note as adequate. However, the committee criticised the explanatory note which was appended to the other statutory instrument, the European Communities (Repeal and Revocation of Certain Provisions) Regulations. In this later case the ministerial regulations revoked a number of statutory provisions which had required a mark of origin on a wide range of goods. The comments have been noted and I would say to Senators that the Department involved considered that the explanatory note was in the circumstances sufficient. They took that view bearing in mind the knowledge which interested parties had in the background in the making of the regulations in question. I concur fully as I am sure other Ministers in other Departments generally do with the firmly stated view of the joint committee that explanatory notes appended to statutory instruments should be clear and informative.

One other matter I want to mention in conclusion is that the joint committee indicate that it is pleased to note that further to an earlier recommendation which it made two statutory instruments have been amended. That is further evidence if further evidence were to be required of the value of the work done by the committee and of the seriousness with which its work is treated right throughout the legislative process.

Senator Dooge expressed the hope that the concerns he had expressed would be taken account of and that in moving future debates he would be able formally and simply to welcome them. I want to tell him that the report will be taken very seriously. I look forward to coming back to hear some very short speeches from Senator Dooge on future reports.

The final comment I want to make is that Senator Fitzsimons raised one question in relation to the statutory instrument dealing with wild birds. I am not in a position to reply in detail today but I will write to him on the subject.

Professor Dooge

Speaking as Leader of the House rather than mover of this motion, while it is true to say that there was an expectation that this question would be taken early this morning there may be an expectation on behalf of Senators that it would not be taken until after lunch. Senator Fitzsimons came here this morning under that impression. I raise the point now as Leader of the House, since we are within 20 minutes of the time at which we did agree to adjourn for lunch whether or not it might be advisable in the event that Senators had made that assumption that we should now adjourn until 2 p.m. in case such Senators wish to reply. I would hate to think that not one of the seven Seanad Members of the joint committee was here to discuss this report. If they have not turned up by this afternoon I will make that point in my concluding speech.

Sitting suspended at 12.10 p.m. and resumed at 2 p.m.