Seanad Éireann debate -
Thursday, 1 Mar 2001

Vol. 165 No. 10

Customs and Excise (Mutual Assistance) Bill, 2000: Committee and Remaining Stages.

Sections 1 to 6, inclusive, agreed to.

SECTION 7.

Mr. J. Doyle

I move amendment No. 1:

In page 7, lines 39 to 40, to delete subsection (2).

The customs co-operation convention provides for special forms of co-operation especially in relation to certain types of infringements, such as cases involving illicit trafficking of drugs, smuggling and illegal importation of weapons. These special forms of co-operation are hot pursuit, cross-border surveillance, covert investigations and joint special investigational teams. These provisions would have the effect of allowing customs officers from one state to enter another state to carry out their investigations.

The convention allows member states to opt out of applying the provisions relating to hot pursuit, cross-border surveillance and covert investigations. The other provisions are mandatory. The Government proposes in the Bill to avail of the opt-out provision and to make a declaration to this effect when Ireland lodges its instruments of adoption of the convention. However, if at some future date circumstances change and Ireland wishes to opt in, the subsection I am seeking to delete provides for this by way of Government order and the necessity to enact amending legislation is avoided. This matter is of such importance that it should only be facilitated by legislation, not Government order. That is the reason for tabling the amendment.

Minister of State at the Department of Finance (Mr. Cullen)

I thank the Senator for raising this matter. However, his concerns are met by section 11. It provides that if we were to opt in, it can only be done by laying regulations before both Houses. It would have the same effect as primary legislation in that both Houses of the Oireachtas would have to approve subsection (2) becoming law. The Government cannot do this simply by order; both Houses of the Oireachtas must approve it.

Mr. J. Doyle

Is the Minister referring to regulations that become law within 21 days of being laid before both Houses?

Mr. Cullen

Yes, it is the same as ministerial orders.

Mr. J. Doyle

I lost faith in the practice of amending legislation by regulation after reading the Ombudsman's report on the nursing home subventions. It shows we should be wary of passing legislation which permits the same legislation to be amended at a future date by regulation. That is my worry in this case. This is a matter of grave importance and if the State decides to opt in, it should do so through amending legislation, not by order.

Mr. Cullen

The Senator and I are ad idem but we are discussing two slightly different issues. It is not a question of just lodging the regulations in the Oireachtas Library. The way the matter is dealt with in the Bill is unlike how the other issues to which the Senator referred were dealt with. It must come before both Houses of the Oireachtas. The provision simply means we will not have to draft new legislation and suffer the time delays and so forth that might be entailed in coming up with exactly what is in the subsection. To give comfort to Members, these issues are not simply a matter of a ministerial order being laid in the Oireachtas Library. It must be brought before the Dáil and the Seanad, so the effect is the same as legislation.

Mr. Costello

Senator Doyle raises an important point. We should not introduce legislation whereby the Minister can, almost by ministerial nod, change important provisions in relation to inter-activity between different states, such as cross-border surveillance, hot pursuit and so forth. If it is not as Senator Doyle suggests, where the regulation is put before the Houses and if there is no objection within 21 days it comes into operation, is the Minister saying that a formal draft of every order will be put before each House, will appear on the Order Paper and will be voted on or approved by each House? In that case, it would be open to debate by each House over a period of time and we could invite the Minister to the House to discuss the matter. Only then would it be approved and become law.

Mr. Cullen

Yes. My note on section 11 might be helpful to the Senators. Section 11 sets out the criteria which will apply in relation to the making of orders or regulations under this legislation. The making of orders or regulations by the Government or a Minister is a function which does not require a specific enactment of the Houses of the Oireachtas. As a safeguard, it is normal practice in framing legislation to provide that before any order or regulation is made by the Government or a Minister under an Act, a draft of the order is to be laid before each House of the Oireachtas. Subsequently, that order or regulation cannot be made until a resolution approving the draft has been passed by each House. The Act provides limited possibilities for the making of orders or regulations in this regard.

It is clear that they must be put before both Houses and it is only following the resolution of both Houses that this subsection can take effect. It has the same effect as me coming before the House with primary legislation.

Mr. J. Doyle

I accept the Minister's comments. Unfortunately, however, these orders and regulations tend to slip by on the nod and that is my concern about this provision.

Amendment, by leave, withdrawn.

Section 7 agreed to.

Sections 8 to 12, inclusive, agreed to.

First to Tenth Schedules, inclusive, agreed to.

Title agreed to.

Bill reported without amendment, received for final consideration and passed.

Sitting suspended at 11 a.m. and resumed at 12.30 p.m.