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Joint Committee on the Secondary Legislation of the European Communities díospóireacht -
Wednesday, 28 Apr 1976

Implementation of Secondary Legislation of the European Communities by Statutory Instruments.

There are three reports to be considered by the Committee today. The first report is of a general nature and deals with the question of implementation of secondary legislation by means of domestic statutory instruments. As most members know, we have been keeping this matter under review for a considerable time. We felt that the time had come to make a general report on the way we see the situation developing and direct attention to certain aspects of the way secondary legislation is implemented by means of domestic legislation or ministerial regulations. I am sure the Committee will agree that this report is timely.

I should like to mention that I received a letter from Senator Robinson indicating her regret that she cannot be present because she is attending a conference in Brussels today. She has made some comments about the question of offences and penalties which I will deal with later. I take it that paragraph 1 is in order?

Paragraph 1 agreed to.

Paragraph 2 deals with the general situation with regard to implementation.

Paragraph 2 agreed to.

Paragraph 3 deals with the aspect of consistency in the implementation of instruments.

The Committee will recall that we were concerned particularly that statutory instruments which implement secondary legislation should, as far as possible, be comprehensive in themselves and that lawyers and others would not have to refer to the original secondary legislation. As far as possible we hope that the domestic regulations will be self-explanatory in that regard. We also mention in the report the question of consistency in phraseology. We have given instances of where there is some inconsistency creeping into the situation. That is of considerable importance from the point of view of practitioners; there should be consistency in phraseology.

The two principal aspects of that matter are the question of whether we use in the domestic instruments wording and phraseology to which we are accustomed in our domestic legislation or, alternatively, whether we try to incorporate as far as possible the wording of the original initiating secondary legislation of the Community. Whatever procedure is to be adopted, it should be consistently adopted.

Paragraph 3 agreed to.

In paragraph 4 we mention the question of citing the necessary authority.

That paragraph is of particular importance in seeking to ensure that the person who refers to one of these instruments knows, in the first place, that it arises from an EEC Regulation and, secondly, that he is able to check whether it correctly implements the Community legislation. It is important that the origin of the instrument is indicated.

And its context, particularly its relevance. I could see trouble arising in the matter of interpretation in the light of other legislation on which it may impinge.

Paragraph 4 agreed to.

In paragraph 5 we touch on another aspect, that is the necessity of confining Irish Ministers to the particular purposes of the originating Community legislation. We came across an instance where an instrument which purported to be made under the European Communities Act, 1972, dealt with something which was not involved in any way with Community secondary legislation. We ask that great care be taken to ensure that if an instrument purports to be made under the European Communities Act, 1972 and relies on that Act for its validity, it be confined to the ambit of the Community legislation. Nothing else should enter into it.

There could be a situation where the Minister, making a regulation, basically implementing an EEC regulation, would also take the opportunity of including something arising from some domestic Act. Although that would be confusing it might not necessarily be objectionable.

But he would have to derive the authority to do this from the other Act.

It would be better to proceed by way of two separate instruments. In so far as it is purported to be made under the European Communities Act, 1972 it should be confined to Community purposes.

Paragraph 5 agreed to.

In paragraph 6 we deal with the question of penalties. One of the regulations provides for a maximum fine of £500. When we were discussing the relevant instrument we wondered whether £500 would be acceptable to the Supreme Court as a level consistent with summary jurisdiction. Senator Robinson has written to me to say that in her view the maximum should be £200. She goes on to say that when the Minister for Justice was steering the Family Law (Maintenance of Spouses and Children) Bill, 1975 through the Seanad he made particular reference to this. Section 20 of that Bill provides for offences for which a person may be liable on summary conviction to a fine not exceeding £200 or, at the discretion of the court, to a term in prison not exceeding six months, or both. It is fairly clear that whatever about £200 being the maximum which will be acceptable, £500 is not acceptable at this stage.

We are talking about instruments made under the European Communities Act, 1972, but can the Chairman tell me which section of that Act gives power to impose penalties?

The Act provides that regulations under section 3 shall not create an indictable offence. The Deputy will recall that we had considerable discussion in the Dáil in regard to the whole question of regulations creating offences. It was accepted by the House that a regulation could create a summary offence but that the Act should prohibit the making of an indictable offence.

The question arises, then, of whether the £500 penalty goes outside the summary jurisdiction area.

Is it clear that the section empowers the Minister making the regulation to fix a fine?

Section 3 reads:

(2) 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, amendment or applying, with or without modification, other law, exclusive of this Act).

(3) Regulations under this section shall not create an indictable offence.

(4) Regulations under this section may be made before the 1st day of January, 1973, but regulations so made shall not come into operation before that day.

It is clear from that that the Minister has power under the consequential provisions to create summary offences but that he is prevented specifically from creating indictable offences.

I would not be able to express an opinion on the matter. One always sees in these regulations provision for a maximum but is it necessary that there be a maximum? Is the maximum always fixed in relation to an Act which indicates what the maximum ought to be? This is a far-reaching and excellent report and one wonders whether that provision ought not to get consideration in relation to the legal theory behind it.

I do not think the word "penalty" is used in the section.

The words used are "incidental, supplementary and consequential provisions".

It precludes anything of an indictable nature. While not claiming to be an expert on this, I would consider a penalty of £500 to be a very serious penalty to impose.

What is the general position if you have an Act providing for a regulation and there is nothing in the Act specifying there should be a penalty, as there is in this Act, where an indictable offence is created?

The answer to that is, I think, that it says, first of all, contravention is an offence so that, I imagine, indicates that if you have an offence there must be a penalty. It would be useless to say it is an offence and just leave it at that.

On the general theoretical legal point raised by Senator FitzGerald, we have already commented in one of our reports to the effect that we think £500 would not be acceptable in specific instances. Here we are referring again to something which is of major importance and general application. I distinctly remember this being discussed very fully in the Dáil and the House eventually coming to accept that section 3 (2) of the European Communities Act, 1972 certainly gives a Minister power to create summary offences with fines. I do not think we can go beyond that.

Would it be possible to say that, in principle, if a summary offence is created, the instrument creating it can impose a maximum penalty? The Act entitles the member of the Executive to say something is an offence but it does not say what penalties can be imposed for committing that offence. What is the position under an instrument made under the Act which allows him to create an offence but fixes no maximum fine? In summary jurisdiction it is a matter of law but would a District Justice have power to impose a penalty of £10,000?

In that case the person being prosecuted could object on the basis that there was no limit and the District Justice could not impose a fine of some huge amount which would be clearly outside the jurisdiction of the District Court.

The District Court has jurisdiction by virtue of statute. Senator FitzGerald's point is well taken, I think. Is there power to give jurisdiction penalty-wise by means of a statutory instrument if the substantive Act does not deal with the matter?

For myself, as a non-legal person, I would not wish to comment on that point as far as legality is concerned. I suggest it is not something we should concern ourselves with in this report. The point was very fully debated in the House when the Bill was going through and if it is raised again, having been accepted by the House, it will not resolve anything. For the purposes of the report we need confine ourselves only to the limits imposed by the domestic regulations and whether they are in accordance with what the Supreme Court has laid down.

There is another aspect. I can see a difficulty in putting a ceiling on penalties in a statute because one must bear in mind that these Regulations, coming from Europe, are dealing with a vast variety of situations and whereas in one case £500 might be an enormously large penalty, in another case it might be a tiny drop in the ocean having regard to the nature of the penalty.

In the case of a multinational corporation, for instance.

Yes, both from the point of view of the offender and the particular offence. I can see the difficulty. I think that in every case that comes before us we will have to be very careful to scrutinise the penalty.

We have here an Act of Parliament which makes it possible for the Minister to create an offence and places no limitation on him as to the maximum penalty. What is his power exactly with regard to the offence?

We can raise it on the next occasion.

What does the Supreme Court say if it finds an instrument without any maximum as distinct from the power of the District Justice to fix a penalty? It seems to me that in our consideration of this legislation it might be useful for us to examine what the law may be on this point.

I will pass from that and just read the first paragraph on page 6.

In the first place the Joint Committee is concerned to ensure that the dimensions of any offence created are perfectly clear. Because it contained a provision which was defective in this respect, the Joint Committee drew attention to S.I. No. 107 of 1975 in its twenty-second report. Secondly, the Joint Committee expects that the consequence of failure to observe a particular requirement will be clear to those concerned. For deficiencies in this respect it cited S.I. No. 62 of 1975 in its twelfth report and S.I. No. 107 of 1975 in its twenty-second report.

Statutory Instrument 107 of 1975 deals with the marketing of detergents and it created an obscure offence. The Joint Committee asked the Department of Industry and Commerce to re-examine the instrument and, if they were quite satisfied there was merit in our view, as expressed in our twenty-second report, would they take the matter up? We said we would consider again whether we should recommend annulment of the instrument. The Department have been in touch with the Commission and are awaiting a reply from it. Unfortunately they have not had any word so far. Our time limit for recommending annulment to the Oireachtas expires on 27th May and it certainly seems quite clear now that we will not be in a position to do anything before 27th May. That is the problem. However, they accepted our view and the Attorney General accepts our view so I think we will let the matter rest there. If and when the Department hear from the Commission they will rectify the matter.

To safeguard our position will it be necessary for us to put it to the House to recommend annulment and, if whatever steps are necessary follow, then we do not have to proceed with the annulment? I make the suggestion because of the statutory time limit.

I do not think it is of sufficient importance to merit that. We can, I think, leave it go. The Department have generously accepted our point of view and agreed to change the situation.

Oh, they have agreed. That is all right then. The public will be protected. That is important.

I would like to join with Senator FitzGerald in saying that this is an excellent report, such an excellent report on such an important subject that I think some effort should be made to air it in one or other House. Some effort should be made to get a debate going on it in one or other House to give it a little more exposure.

Yes. In that regard it is legitimate to point out that the Seanad is away ahead of the Dáil in this whole field. Senators are, I think, quite up to date in discussing the six-monthly reports on Developments in the European Communities whereas in the Dáil we are three or four reports behind. A natural procedure would be to ask to have this report discussed in conjunction with one of the six-monthly reports. That is the only thing we can do in the Dáil. Perhaps the Senators may be able to do a little more than that in the Seanad.

I suppose we are free to discuss any report we submit if special time is given for it.

A lot of work was done on this and I think a lot of people engaged in our respective professions would benefit from their attention being focused on it, quite apart from the Departments concerned. Greater focus comes from the Dáil or from the Seanad debate than from merely laying it before the House. It is a practical matter of working out whether it be done from the Dáil or the Seanad.

I will see what we can do in relation to the Dáil but we will have to rely on our colleagues in the Seanad for the principal initiative in this regard. They have a better chance to have it debated than we have in the Dáil. We will leave it to the Senators to see what can be done. Perhaps we might also direct the attention of the different bodies to the report.

I wonder if this could get published in the Law Society Gazette which gives a good deal of attention to European legislation? Solicitors would be interested.

We will see about that. It is something which might well be brought to the attention of professional bodies.

Paragraph 6 agreed to.

Draft Report agreed to.

Ordered: To report accordingly.

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