The committee is in its very early stages. It is a new committee. There has not been a committee of this type in the Oireachtas before. There will be housekeeping issues to be dealt with so the committee can advance and do its work as professionally, competently and effectively as we can. I thank the Minister of State for his patience. Unfortunately, because of the long discussion we have had already, a couple of colleagues have to leave early. This goes against normal precedent, but would the Minister of State be amenable to them making a contribution before he makes his opening address?
Committee Work Programme
I welcome the Minister of State and offer our apology for delaying him. I will just make one point because I have to be elsewhere. We are very anxious the terms of reference of the committee should be fully respected and that draft statutory instruments should be made available to us. When we use the term “draft statutory instruments”, we do not want somebody saying there is a document which is sub-draft and delaying the concept of "draft" to the last moment. We want to see what is in substance being proposed and what will appear in draft statutory instrument and to see it as soon as it is available.
It is a big departure from convention for us to speak before the Minister of State and I thank him for that. It is a red-letter day for this new committee and he is the first Minister to address us. I concur with the remarks of Senator McDowell. We would like the draft size, be they in the form of heads or the equivalent of a general scheme. We would like a heads-up.
I am sorry we went on so long in private session. In private session, and this part of it is not confidential, I requested and it was agreed that we receive as soon as feasibly possible any published judgments of the European Court of Justice which find that Ireland is in breach of or not adequately responding to its obligations. Hopefully, this committee, by flagging such issues, will have a role to play. Gabhaim míle buíochas leis an Aire Stáit.
Given the fact the Minister of State has brought officials, it is appropriate I read the privilege note. I remind members of the long-standing parliamentary practice to the effect they should not comment on, criticise or make charges against a person outside of the Houses or an official either by name or in such a way as to make him or her identifiable.
I thank the Cathaoirleach and committee for the invitation to attend and address them. I congratulate the Cathaoirleach on his appointment. I know he will put his experience in the Oireachtas to good use. When I was recently at the Prespa Forum in North Macedonia, there was huge gratitude for his presentation at the Organization for Security and Co-operation Europe, OSCE, during which he really relayed lived experience to the members. His work is acknowledged and I hope he can bring his experience to bear in this committee.
I welcome the establishment of the Seanad Select Committee on Scrutiny of Draft EU-related Statutory Instruments. There is no doubt that the European Union impacts greatly and positively the lives of Irish citizens. For the past 18 months I, along with other ministerial colleagues, have been engaged in the EU50 programme, a period of reflection with both a domestic and international focus, to engage with our citizens and our European partners on Ireland’s place in Europe. This morning I was honoured to host an event in Government Buildings with some of our Eurobabies, those born on 1 January 1973.
Ireland’s development has been fundamentally shaped by our membership of the EU. Much of this is by EU legislation, which Ireland, as part of the Council of Ministers and the European Parliament through the co-decision process, has assented to. It is only right that proposals from the European Commission are properly scrutinised by member state parliaments. Many will be brought forward following extensive consultations, not just at technical level but also with member state administrations and often through citizen consultations. The President of the European Commission, Ursula von der Leyen, has recently committed the Commission to much greater use of citizen consultations. This is very much in line with the recommendations of the future of Europe consultations undertaken in the past two to three years, of which the Government, including my predecessors, is strongly supportive.
From a parliamentary perspective, when a legislative proposal is published by the Commission, the relevant Department has 20 working days in which to provide an information note on the issue to the Oireachtas. In line with arrangements which have applied for over 12 years, the scrutiny of these proposals is mainstreamed to the relevant sectoral committee. Sectoral committees may seek additional information in respect of individual proposals and can call witnesses, including Ministers. The House occasionally follows through on some of those proposals and issues reasoned political opinions on some of these, often on grounds of subsidiarity. Committees may - and are encouraged to - make their views on particular proposals to relevant Ministers in order that these can be taken into account when the proposals are proceeding to relevant councils for decision. Once a directive is agreed at Council and subsequently with the European Parliament, it is published and typically member states are given two years in which to transpose it.
It is only right I should say that at that stage, the room for manoeuvre for member states is limited. The policy choices have been made and member states must bring the directive into force by the deadline. In any year there may be 50 to 70 or more co-decision directives to be transposed. Where necessary, the primary legislative route will be followed. Otherwise, the EU directive will be transposed by secondary legislation under section 3 of the European Communities Act 1972, which will be the focus of this new committee’s work.
Last year, when the Government was agreeing to the Seanad proposals for establishment of this new committee, strong advice was received that the new process should not in any way hinder the completion of regulations to transpose these directives, as failure to do so on time can inevitably lead to the opening of infringement proceedings. Thus, the decision of Government was that the focus of the new arrangements should be on draft statutory instruments at the start of the process, that is, as soon as possible after the directives have been published, where there is the greatest opportunity for there to be adequate time to take account of any views of the Seanad committee or of sectoral committees, where cases have been referred to them for further scrutiny. Accordingly, I look forward to processes being put in place whereby newly published directives can be scrutinised by this committee at an early stage and where the views of the committee and sectoral committees can be taken into account by Ministers and their Departments in finalising the statutory instruments to transpose these directives.
In terms of scope, the Government agreed last year that not all statutory instruments transposing EU measures should fall for review by the committee. For example, routine statutory instruments providing for technical definition updates, say designation of a special area of conservation; giving effect to Commission implementing or delegated directives; or concerning EU sanctions or restrictive measures, are outside the scope of this new process.
The focus of the committee is on the transposition of EU directives. I am happy to advise that Ireland’s transposition rate continues to improve. The European Commission’s Single Market scoreboard measures the rate of compliance across member states twice per year, at the end of May and November. The headline target for member states is 0.5%, effectively that not more than five directives are late in being transposed. Each year there may be 30, 40 or more directives in the Single Market area to be transposed. This target has been very difficult to achieve for all member states over the past three years or so, not least due to Covid impacts. Over this time, Ireland’s figure stood at around 1.2%, or approximately 12 directives missing the deadline, putting us around the middle of the class in terms of performance.
However, I am happy to advise, while formal confirmation is awaited from the Commission, that we expect only seven directives missed the end of May deadline for the summer 2023 Single Market scoreboard. If this is the case, this should put Ireland among the best performing member states in terms of transposition but we are not resting on our laurels in this regard. Members will be aware that Ireland will next assume the Presidency of the EU on 1 July 2026. The Tánaiste, in a recent memorandum to the Government, has tasked Ministers and their Departments to bring this figure down to zero by May 2026 in order that we start our Presidency with all directives transposed on time. This was achieved before our previous Presidency in 2013, which is only the second time across the EU that this had been done. We are committed to doing the same for 2026.
Turning back to the work of this new Seanad committee, as with any new arrangements there inevitably will be teething issues and it may take a period of trial and error to come up with the best workable solution. At the end of the day, I hope the new process will see the expertise and experience of the esteemed committee members I see today being used to scrutinise draft EU-related statutory instruments and to improve the transposition of EU legislation in Ireland.
I thank the Minister of State. Four colleagues are present. I propose that each member asks a question and the Minister of State may respond to each one individually. It is important we note the significance of this first public meeting of the committee. It is a key milestone in Seanad reform. It would be remiss of me not to acknowledge the huge contribution of the previous Cathaoirleach of Seanad Éireann, who is now the Leas-Chathaoirleach of both the Seanad and this committee, for his steadfast commitment to implementing one of the key recommendations of the 2013 Seanad report and other Seanad reports.
There is no doubt but that a democratic deficit exists between the EU and the people. What happens in Brussels and in EU institutions is considered as being a far distance away from the people on the ground. It is only when directives are transposed, implemented and affect people's lives that the true meaning sometimes rises to the top. The Government's commitment that by May 2026, zero directives will await transposition is a welcome development but we should go further. We should not have any undue delay, from 2026 on, in transposing directives into Irish law. These directives are for the common good and the good of the citizens of this country. The Government plays a fundamental role through its MEPs, the Commission and so on in negotiating such directives. They are always done for the common good. That is why there should never be a delay in implementing EU directives. It is akin to justice delayed being justice denied. Delaying the implementation and transposition of directives means that the quality of life of the citizens of this country is delayed. We are paying significant money in fines for directives we are unduly delaying to transpose. That is taxpayers' money and it should not happen.
The Minister of State is very welcome. The work the committee is collectively undertaking is very important as part of the wider function of these Houses. I note the Minister of State stated "strong advice was received that the new process should not in any way hinder the completion of regulations to transpose these directives, as failure to do so on time can inevitably lead to the opening of infringement proceedings". To be clear, it is obviously no one's intention to delay transposition. I note that the power to transpose directives through statutory instrument is a power given to the Government by the Oireachtas through the European Communities Act 1972. It is not a divine right of the Government to make secondary legislation. Any attempts by the Government to bypass or dilute the role of a committee would be inappropriate.
On the point regarding infringement proceedings, while the Minister of State quoted figures from the Single Market scoreboard, we need to be very clear that the scoreboard only examines compliance with EU directives concerning the Single Market and not other vitally important areas, such as the environment. In the past number of days, the Court of Justice of the European Union, CJEU, issued a substantial ruling regarding Ireland's failure to adequately implement the habitats directive, which will result in fines. The judgment found that Ireland had breached the directive by failing to designate 217 of 423 sites in the Atlantic biogeographical region, identified by the European Commission as special areas of conservation, within at least six years of the law coming into force. The designation of special areas of conservation is something that under Irish law is implemented through statutory instrument under section 3 of the European Communities Act.
In January this year, the Commission referred Ireland to the CJEU for failing to correctly transpose the EU water framework directive into national law, for inadequate prevention and management of invasive alien species and failure to adequately reduce air pollutants, notably, ammonia emissions arising from agriculture. In 2017, the Commission sought infringement proceedings for failing to properly transpose the environmental impact assessments directive. It is very unfortunate that in a revision to the Minister of State's opening statement that he circulated to members ten minutes before the start of our private session, he added a paragraph to argue against scrutiny of the statutory instruments designating special areas of conservation.
I do not think that is correct.
Will we move to the Minister of State to answer?
No, I am not finished. We only refuted-----
We need to accurately reflect the record. Notwithstanding that my speech was on RTÉ news last night, we should accurately reflect on the record here that I did not amend the speech.
I will ask the clerk to provide clarity on this. Will the Minister of State-----
I am not finished. We received a revised speech. I have two versions of the speech. I am sorry if that is news to the Minister of State.
It seems there were crossed wires in terms of speeches, unfortunately. I think it has been clarified.
I have only one speech that I am aware of-----
We have two.
-----and I have delivered it here. It is very important to deliver speeches-----
It is a very important point.
-----on the record at committee. That is key and fundamentally part of the democratic process, which is why it is important.
I accept the Minister of State was unaware of that. In preparation, I had one speech but I received an updated speech in the past hours. We can move on-----
The speech that matters is the speech that was delivered.
-----from that anyway. Preparation for me is why it is important.
I hear the Senator.
As regards the conservation piece, it is unacceptable for the Government to interfere in parliamentary scrutiny of the statutory instruments on conservation. There is a litany of examples where Ireland is failing to transpose environmental directives. Not only are we incurring fines; we are also damaging the environment. It is upon this committee to be able to scrutinise those directives.
Will the Minister of State work with his colleagues across the Government to ensure that they, in co-operation with the committee, and recognising the separation of powers between the Parliament and the Government, will assure us that the Government will not attempt to undermine or dilute the work of the committee? Does the Minister of State accept that given Ireland's consistent failure to properly transpose environmental directives, this committee needs to scrutinise what the Government is doing to remedy judgments against Ireland by the CJEU, where such remedies are brought through use of statutory instruments? Where transposing legislation is absent entirely, this is a concern for the committee. Specifically on the recent CJEU ruling, and I would appreciate it if the Minister of State would respond in writing if he cannot do so now, will he consult with the Minister for Housing, Local Government and Heritage to ask that draft statutory instruments, which would implement the judgment or at least a plan for implementation, be presented to the committee as soon as possible?
To clarify, I authorised only one speech to issue to the committee. Let me be very clear on this. It is the speech that I read into the record a few moments ago.
I thank the Minister of State for that clarity. It is accepted by everybody.
I thank the Cathaoirleach. That is very important.
With regard to our record of the several thousand transpositions going back over the 50 years of our EU membership, in only four instances has Ireland ever been fined by the ECJ. This is a very strong record in terms of any objective person looking in and measuring where we got to. We went into our previous Presidency with no cases against us. I am working through the interdepartmental group to try to ensure that we get this figure back down to zero before our next Presidency.
As a democrat I always respect the parliamentary process. The procedure is very clear at present, whereby directives go before sectoral committees. As it stands, this is the opportunity for the Oireachtas to adjudicate and give reasoned opinions, as I referenced in my opening statement. Under no circumstances is the Government bypassing any of this long-held procedure.
I also want to very clearly put on record that I hope the committee adds value to the process. This is what we are here today to do. We want to add value to this and bring additional transparency to the heart of the citizen and try to improve the link between the citizen and the EU. I will work constructively with the committee to do this to the satisfaction of the members.
I thank the Minister of State.
I thank the Cathaoirleach for stating at the beginning of the meeting that this is part of Seanad reform. I pay tribute to the Clerk of the Seanad, Mr. Martin Groves, and all the Seanad staff, who have been working on this issue along with the Minister of State's predecessor, Deputy Thomas Byrne, and the former Minister and Attorney General, Senator Michael McDowell.
We have spoken about clarity and transparency. A key issue when we wrote the document was scrutiny of statutory instruments. This is one of the elements. There are directives and information notes but the statutory instruments are what become law. I want a commitment from the Minister of State on this. I will outline again our terms of reference, which state the committee shall have the power to refer any proposed statutory instrument and associated documents to the relevant joint committee and to recommend to the committee that the proposed statutory instrument be further scrutinised. This is to get away from the legalese and jargon that often is confusing and, in some cases, designed to confuse.
The legalese version is that EU directives are transposed by way of statutory instrument into Irish law. Effectively this means we get a proposal from the EU. At present they are added to by Departments without anybody seeing them before the Minister signs the final document into law. I would like a commitment from the Minister of State, as per our terms of reference, that the draft statutory instrument will be made available to members of the committee so that we can send them on to the relevant committee because that is what becomes law. I would like a commitment from the Minister of State with regard to the drafts, as per our terms of reference and the letter I wrote on this proposal in April 2021. As it is in our terms of reference, we hope the Minister of State will be of assistance to us. This is about transparency if this will impact on Irish citizens. Our job is not to delay the instruments coming into effect, nor would we do so, but it is very important that we would be given draft statutory instruments that would impact the citizens of Westmeath, Kerry and Ireland along with all of the other information that will help us to make sure it is brought into effect in the best possible way.
I am happy to assist in this process. I want to accurately reflect the record. It is not true to say there is no oversight of secondary legislation at present. That is provided for in the sectoral committees. I want to be very clear on this. To make a statement that there is transposition with no Oireachtas oversight is totally inaccurate. We need to focus on what this committee can do, which is add value to the process in its liaising with the sectoral committee. It is important that the committee can do an additional deep dive into a directive to add this value.
To be clear, those committees do not get draft statutory instruments before they are signed into law.
It has to be presented to the committee for approval.
The draft statutory instrument?
Yes. It then goes to the Oireachtas subsequently.
No, draft statutory instruments from EU directives are not presented to committees in advance of them being signed into law.
The committee has the power to do so. I understand that, in some instances, they do so and, in others, they do not. The power is there. This is the point I am making. It is the choice of the membership of the committee not to do so.
My point is that the purpose of this committee is to ensure that all those draft statutory instruments would come to this committee and then this committee, as outlined in No. 8 in our terms of reference, would have the power to refer any proposed statutory instrument and associated documents to the relevant joint committee and to recommend to the committee that the proposed statutory instrument be further scrutinised. What I am saying is the process is that all the relevant statutory instrument would come to this committee, with the assistance of the Minister of State, and that as a matter of course they would be put in front of the relevant committee. It would not be a case of whether a committee would choose to do so. What we are asking, as well as all of the other elements of this process that we are working through, is that the draft statutory instrument, as Senator McDowell outlined, would be made available to this committee in advance of it being signed into law, again making sure that we meet the deadline.
I cannot absolutely give that commitment, unfortunately, because I am very careful about the political commitments I give. I know with regard to stamping by the Office of the Parliamentary Counsel that the approval process has to be agreed. For some of these instruments, there can be very tight timelines. I do not want to make a commitment that I do not have the power to stand over or deliver to the committee. I want to be very careful about this. While I will endeavour to do my very best in the process, I cannot absolutely give a guarantee to the committee.
I thank the Minister of State.
Can I just say-----
One further question.
That is the purpose of the committee. I spoke to the Minister of State's predecessor and his understanding was that it was the purpose of the committee. The Minister of State said is the legal equivalent of saying the Oireachtas will only look at and only speak about pre-legislative scrutiny and possibly the heads of Bills but that legislation that will take effect will not be made available to the Members of the Oireachtas. This is the equivalent in this case. As I said, the terms of reference of the committee are that we will get proposed statutory instruments. We have Senator McDowell's view on this and the view of the previous Minister of State. We will write to the Taoiseach to ask that draft statutory instruments would be made available to the committee. They are there and they get brought into Irish law. The question is why they are not made available to the elected representatives of the people so they can look at them before they are signed into law by the Minister. This does not happen as a matter of course.
As I said, the provision is there for it to happen at the sectoral committees. I want to be very clear. I will not make a political commitment that I cannot stand over and that I do not have the authority to stand over. Much of this is beyond my control, unfortunately. I will work to assist the committee in any way I can in the adjudication and doing a deep dive into these statutory instruments and directives coming from the EU. This is why in my opening statement I encouraged members to get involved in the process earlier so they can get reasoned opinions from Departments at an early stage to see the trajectory and the line of sight. I am always very careful about making political commitments. It would be very unwise of politicians to make a commitment that they do not have the power or capacity to stand over.
I thank the Minister of State for coming before the committee and for his opening statement. I met one of the people born the year of accession. They are all 50 now because we are 50 years in Europe. I happened to meet one of them yesterday who was absolutely thrilled and produced the coin and showed me the transcription on it. The person was thrilled to be acknowledged today by the Government. I thank the Minister of State for this. The person was very excited. It is somebody who is not political but somebody I happened to meet yesterday.
The Tánaiste has issued an instruction on reducing to zero the number of fines relating to directives before we take up the Presidency in 2026.
Has work started on that? Is the Minister of State confident that we will reach our targets by the time 2026 comes? As far as I am aware, we are after Lithuania. I assume we are already working with Lithuania on preparations towards 2026.
I thank the Senator for her positive comments on our event today, which I believe was very worthwhile. We absolutely have a lot of work to do. We have an implementation advisory group that looks at all the EU cases currently before us. We are working very hard on that transposition target. We did achieve it before, which gives me hope that we have the capacity to do so again, but it takes a lot of work. That is why we are planning very strongly and working with our EU counterparts as we engage in that process. It is a big challenge but I hope we can get there. It is in all of our interests to get there because, as I have said, we hope to be high on the table when the new publication is revealed, showing that we are a state that is very compliant and efficient in getting its work done. It would be remiss of me not to say how we, as a country, prioritise the rule of law, democratic values and transparent media as we go around many of our General Affairs Council meetings. We have to ensure that we comply with those fundamental principles of the EU ourselves.
Since this is our first public session, I believe it appropriate to congratulate Senator Conway on becoming Chair of this committee. He brings great personal ability and a lot of parliamentary experience to the role. I wish him well in the role. It is important that we get up and running fast and get the job on the road. We will learn and develop as we go. We cannot spend the entire month or two navel-gazing. We have to get on with the job and work from there on. I will turn to one or two technicalities in a minute, however.
I also welcome the Minister of State. I applaud the way in which he has embraced this new Ministry and the energy and competencies he brings to it. I had personal reason to see the work he did in his previous Ministry and it was very impressive. I am delighted it is continuing. We are fortunate to have somebody of the Minister of State's ability in this critical role.
At this first public meeting, it may merit recalling that European directives and regulations have modernised Ireland since we joined the EU and that those directives have turned us into a modern, diverse, accepting, understanding and broadly-based society where everybody has a very special dignity and a special role and where the worth of every individual is seen and fully transferred. That is particularly true of the role the EU has had in women's liberation and gender equality. A great many directives, regulations and rulings of the ECJ have been transformative for this country. In a sense, that underlines the critical importance of what we are doing and the great honour it is to be here doing this. We should feel privileged in that regard.
Apropos of Senator Daly's remarks, I noticed that, in the Minister of State's statement, he said "the decision of Government was that the focus of the new arrangements should be on draft statutory instruments at the start of the process, that is, as soon as possible after the directives have been published", which is where we begin the process of transposition. He indicated a willingness to try to achieve that. It is a reasonable position and we should progress from that point onwards. That is good and I welcome and acknowledge it.
In his opening remarks, he also made the point regarding a situation that could arise. It is not the ambition to bring about such a situation; quite the contrary, we are here because we have great regard for the European project and really want to see the implementation of directives and regulations to the betterment of our society. However, the Minister of State is right to caution against any unnecessary delay. The committee would have a negative effect were it to be used as a delaying mechanism. That is not our intention. We intend to propel things forward, to improve things and to increase public awareness rather than to make an effort to delay matters. The Minister of State strikes a cautionary note and I agree with him. He might comment further in that regard.
My colleagues, Senators Ruane and Martin, and others have made the reasonable request that we would seek ECJ rulings. There is nothing particularly revolutionary about asking to be made aware of rulings that are pertinent to the country as a matter of course. They may be pertinent because of a failure to fully transpose a directive or a failure to do so properly or because they relate to a defective regulation or statutory instrument. It is reasonable that we would get those rulings as a matter of course. I ask the Minister of State to comment on that.
I will finish on my next point. It was interesting that the Conference on the Future of Europe and Ursula von der Leyen have put a focus on citizen consultation. That is the way to go because that is how we can get over the democratic deficit and get buy-in to the institutions, directives, regulations and statutory instruments. For that reason, I humbly suggest that, insofar as the Minister of State can advance the concept of citizen consultation, almost following the model of our citizens' assemblies, within Europe and encourage its development as a new European phenomenon, it would be good to do so. I would be interested in his comments on that.
I am excited about this evening. It is a great evening. I will finish quickly but it is important to make this point. I am becoming less and less willing to announce this recently but, no matter how much I would like to alter it, it remains the case that I was born in 1955. I lived part of my life in the Ireland that existed before what was then the European Economic Community, now the European Union. I knew that Ireland intimately. I then saw how Ireland evolved, progressed and changed under the EEC and then the EU. It has been wonderful. I am very proud and happy to be a member of a committee that will be part of the further development of that process. It will not be a negative part or, as the Minister of State has mentioned, a part that holds things up or a part that seeks to thwart the process. Rather, it will give a constructive and positive input. I believe that we can do that. It is a great evening. We should be very proud to be here. Those who take being here for granted do not realise the importance of what we are doing.
I thank the Senator. It would be remiss of me not to celebrate the vast experience he has gained and the contribution he has made at the Council of Europe. This committee is very fortunate that he is a member, bringing with him that experience from his many years at the council. If I am not mistaken, he was a vice-president in the previous term. That experience will enrich and enhance the work of this committee. I thank the Senator very much.
I will reiterate what the Cathaoirleach has said and acknowledge the contribution of Senator Joe O'Reilly on the European stage, his work at the Council of Europe, which is highly recognised throughout Europe, the contacts he has made and the way he represents our country with distinction.
With regard to what he and Senator Ruane have said regarding ECJ cases, we have absolutely no issue with copying the committee on those case lists. I will be very clear about my approach. I want this committee to add value to the process. I will be a constructive partner to the committee in that because it is very important that we work together to reinforce that link between the citizen and these directives that come from Europe and that we do so in a positive and constructive way. I will be very constructive in my approach. However, I equally want to be frank and honest at all times. That is why I have to be very clear on any commitments I give because they are very important and fundamental to me as a person.
Senator Joe O'Reilly charted how much Ireland has changed positively over the past 50 years because of its membership of the EU. Membership has been a huge public policy catalyst in transforming our country in respect of human rights and civic society, and it has made it more outward-looking. With regard to the metrics rights across society, we can see the imprint of positive change in this country. Europe has been at the heart of it. I look forward to working with the Cathaoirleach and the other committee members in the months and years ahead.
I thank the Minister of State. It has been a long evening. I thank colleagues who have stayed the full course. I realise they have commitments; that is just the nature of it. We will try to get a more acceptable time slot. I thank the Minister of State for his time. I am aware that he has been all over Europe in the past three or four weeks. Our paths almost crossed in North Macedonia and Vienna in the past couple of weeks. I hope he gets some downtime over the summer break.
The select committee adjourned at 8.30 p.m sine die.