I thank the Chair and the Senators for inviting me to meet the committee today to discuss the issues relating to the transposition of EU directives. The committee's letter of invitation indicates a wish to discuss the provision of draft statutory instruments to the committee by Departments, as well as the matter of their publication by the committee. I received a letter from the Cathaoirleach of the Seanad, Senator Buttimer, on behalf of the Seanad Committee on Parliamentary Privileges and Oversight. My remarks today are intended as a response to the different concerns raised. I am aware that this committee's orders of reference were also extended on 9 July to include oversight of infringement actions against Ireland, including where financial penalties have been applied. I am very enthusiastic to speak to the committee about this, particularly as there is very good work we can do.
I agree that it is entirely right that the Houses of the Oireachtas should hold the Executive to account for not transposing EU law on time or for transposing it incorrectly. That is also the objective of the Government. However, it is worth highlighting that the number of infringement actions against Ireland is currently at a record low of 46. Fines have been imposed on Ireland on only six occasions during our EU membership. More than 4,000 directives have been transposed during that time. Nevertheless, we would like it to be lower again.
Returning to the scrutiny of draft statutory instruments by the committee, I am aware it met with the Minister for the Environment, Climate and Communications and Minister for Transport, Deputy Ryan, on 24 June last where these matters were discussed. Our meeting today is also timely as, since I last met with the committee, I have had a series of engagements to try to bring matters as far forward as I can. I met recently with the Attorney General, Rossa Fanning, and his team to discuss these very matters. My remarks today will be guided by these discussions and the advice provided by the Attorney General. It is also important to say that my wish here is to try to facilitate the committee as far as I can within the legal parameters and I have a number of suggestions and issues I would like to discuss with the committee on how it can best do its work within the constraints of this legal advice.
The key points of the Attorney General's advice are as follows. It is important that information notes on new EU directives are provided in the first instance by the relevant Department concerned. I understand the committee is starting to review the 24 directives that were published in 2023 and that will come into effect on different dates from December of this year onwards. Indeed, most of these will fall to be transposed in 2025 and 2026. While some of these directives are quite substantive, a number are more technical in nature. These information notes should assist the committee in prioritising its work on these 2023 directives over the coming period. The Attorney General's advice was that there is no difficulty with Departments providing the committee with the initial draft instructions for regulations to transpose EU directives as sent by them to the Office of Parliamentary Counsel. These should represent the substantive if not quite settled policy of the Department on particular directives. This is, of course, after the major substantive work in agreeing the directive in the first instance has already been done much further upstream. Again, I would like to discuss this with the committee regarding where the policy is fully settled in large part. These initial publications can be examined and published by the committee and forwarded to the relevant joint sectoral committee for detailed scrutiny should this committee so decide.
The difficulty is that subsequent drafts of such regulations exchanged between the Office of Parliamentary Counsel and individual Departments represent a form of legal advice in the same way draft Bills back and forth between the Department, the Office of Parliamentary Counsel and the Office of the Attorney General represent an iterative legal advice process. At that point, it becomes legally privileged and is, therefore, subject to legal professional privilege in a manner similar to a legal opinion prepared in any other way, particularly with regard to the stage between the publication of heads or general scheme of Bill and the drafting of the Bill until it is published as a Bill. That is protected by legal professional privilege. Unless and until a Minister makes the regulations, every iteration of the draft regulations, stamped or unstamped, is subject to legal professional privilege and cannot be provided to the committee. Only the regulations, when made by a Minister, can be provided to the committee apart from the initial draft prepared by the Department, as I stated earlier. I know what the committee wanted, namely, to have available at every stage access to the iterative process. That may or may not be so. What I had discussed last week and what I think represents a step forward where the directive comes into force, for example, on 1 January 2024, and we have a period of two years in which to transpose it is a substantive document being published to the committee, and published generally for transparency, within a period of, say, three months. This would be a new process within Government and would be a better discipline in terms of the management of directives. I would suggest this be published at that early stage, at which point the committee can investigate. What is difficult is the period after that where there is any iterative process between the Office of Parliamentary Counsel in terms of the subsequent drafting of the statutory instrument and final publication of that. That part is difficult in the same way it is difficult with a piece of primary legislation. The committee was right to highlight its concerns about the late publication of statutory instruments where there is no opportunity for scrutiny, including by the Minister. The difficulty with timing generally relates to avoiding fines. There is a new approach by the Commission, which is essentially to impose fines or a problem from the very day in a way it not had done before, so doing it earlier would be a better process generally for the discipline of Government and this committee. We can do some things but not everything and we can do some things an awful lot better, which would give this committee a much stronger role.
One year or more into the life of this committee, it is important there be clarity and legal certainty around what may or may not be provided by Departments to assist the committee in its important work. My intention as Minister of State is to do the best I can by the committee to ensure it is getting information that can be useful to it and make sure Departments transpose directives in a timely way. We now have the settled advice of the Attorney General on the matter.
Also following our meeting today, I will write to Ministers to advise them of the Attorney General’s advice. I began this process with Departments last week. I impressed on them the need for much earlier engagement with the committee with regard to their respective directives. I will encourage Ministers, and I have spoken to many of them already, and the Departments to provide the committee with the initial draft statutory instrument, where possible, six months before the deadline, but to be honest I think we can do better than that. That is something I would like to talk to the committee about. It depends on the nature of the directive. There is quite a lot of work we can go into regarding getting this right so I will be flexible about timelines. What I am trying to do is improve the process.
I will turn briefly to the additional powers of the committee to oversee infringement actions against Ireland, in particular where financial penalties may be applied. I recall there are currently only 46 infringement actions against Ireland, which is an all-time record low for this country but not necessarily anything to be proud of. It should still be as close to zero as possible. It certainly represents a better standing than many of our counterparts in the EU. Nevertheless, as members are aware, we want it to be lower. Other member states have well over 100 live cases. Nevertheless we want the figure to be lower.
Last week, I chaired a meeting of the interdepartmental committee on EU engagement. At this meeting, we went through in great detail the infringement cases currently against Ireland. Not all of those 46 cases are at the more serious end. Fifteen are awaiting closure. Departments have transposed the 15 directives in question, in many cases more than one year ago, and we are simply waiting for the Commission to formally close these cases. I have tasked the relevant Ministers and their Departments with engaging urgently with the relevant Commission services to seek early closure of these cases. That is happening this week and next. Accordingly, I expect that over the coming months, the number of live infringement cases will continue to fall. This may very well be something where the Department has completed all of the tasks asked by the different directorates and the Commission but the file has not been closed because of the passage of time, because it has not been followed up, or because the Commission may be treating Ireland as a one of a number of countries it is waiting to resolve en masse and Ireland is simply stuck in that group. I was keen to examine these 46 cases in greater detail so that we would not treat them all the same way but separate them to see what are the actual issues blocking or not blocking the closure of the file. I expect that, with some management, that number will fall. The number of cases is 46, of which 15 are essentially closed but require closure by the Commission. I have gone through the other ones and am happy to discuss them with the committee.
I thank the Cathaoirleach for the opportunity of coming here today to clarify to the committee the position of the Attorney General and discuss what we can do to better enable this committee to have a role at an earlier stage. The real opportunity to influence the work done is prior to the directive being agreed between the Council and the Parliament. That is where Departments must play a stronger and better role upstream in terms of the communication of what is happening. It is also an opportunity for this committee and the sectoral committees to engage in a much more structured way at that stage because, of course, that is where the substantive policy lies. Once the directive is agreed between Ireland and the Parliament - Ireland is part of the Council and Parliament - substantive work is done and it is not really for Ireland or its legislative processes to reopen or re-litigate that question. We do not have that competence. I am trying to find different ways where the committee can have a stronger role and I suggest this is a body of work we can work on.
