The negotiations between the European Communities and the countries which applied for membership were conducted on the basis of the acceptance by the latter of the Community treaties and of the legislation adopted by the Community institutions in implementation of those treaties. The negotiations, therefore, were not concerned with the acceptability of Community treaties or legislation; they were concerned only with the transitional terms to apply in the case of the applicant countries. These terms having been agreed and having been approved by Dáil Éireann as embodied in the Treaty of Accession and related agreements, and the necessary constitutional provisions to enable Ireland to accede to the Communities having been made by the amendment to the Constitution which was approved by the people on 10th May of this year, it now remains to make the legislative provisions to enable Ireland to fulfil the obligations of membership. That is the purpose of this Bill.
Article I of the Treaty of Accession to the EEC and EURATOM and the same article of the decision of the Council concerning accession to the ECSC provide for membership of the Communities by the acceding countries and for these countries becoming parties to the treaties establishing the Communities, as amended or supplemented.
The same articles also provide that the provisions concerning the rights and obligations of the member states and the powers and jurisdiction of the institutions of the Community as set out in the original Community treaties shall apply in respect of the accession treaty and decision. And Article 2 of the Act setting out the conditions of accession to the Communities provides:
From the date of accession, the provisions of the original Treaties and the acts adopted by the institutions of the Communities shall be binding on the new member States and shall apply in these States under the conditions laid down in those Treaties and in this Act.
The Bill will give effect in Ireland to this treaty provision, by providing that from 1st January, 1973, the treaties governing the Community institutions and European Communities and the "acts adopted by the institutions of the Communities"—what is known as the secondary legislation— shall be binding on the State and shall be part of the domestic law of the State in the conditions laid down in the treaties. And in order to enable the provisions of the treaties and of secondary legislation to be fully effective in the State, the Bill authorises Ministers to make regulations as necessary for that purpose.
I think it would help us in our discussions if at this stage I were to define in some greater detail the terms I have been using as well as those used in the Bill. The term "the treaties governing the European Communities" which occurs in the Bill covers the same instruments as the term "original treaties" as employed in the Act concerning the conditions of accession and the adjustments to the treaties, plus the accession instruments.
The expression "original treaties" is defined in that Act to mean the treaties establishing the three Communities as supplemented or amended by treaties or other acts entering into force before the accession of new member states to the Communities. These supplementing and amending instruments are not, however, listed by name in the Act. The definition in section 1 of the Bill of "the treaties governing the European Communities" lists the three treaties which established the Communities and the major instruments which amend or supplement them—five in all, including the Treaty of Accession and the Council Decision relating to Ireland's accession to the ECSC. The definition is completed by a phrase to cover those supplementing or amending instruments in force before 1st January, 1973, which are not listed in the definition. A fuller list of such instruments is set out in Part I of Appendix II to the explanatory memorandum on the accession treaty which has been circulated to Senators.
In section 1 (2) of the Bill a limitation is imposed on the definition of "the treaties governing the European Communities" by the provision that any treaty or other act amending or supplementing those listed in the previous subsection which enters into force between the date of signature of the Treaty of Accession, that is 22nd January, 1972, and the date of accession, that is, 1st January, 1973, will not be included in the definition of "the treaties governing the European Communities", unless the Government make an order, to be approved in draft by both Houses of the Oireachtas. I might add that the Government do not anticipate that they will be seeking approval for such an order as no instrument of this nature is under consideration in the Community at present.
It is quite clear from Article 2 of the Act concerning the conditions of accession which I have already quoted, that it is necessary to give the force of law to those provisions of the treaties and of secondary legislation which are directly applicable in member states. It is difficult to draw the line between these provisions and those which are not directly applicable and in the last resort this falls to be decided by the European Court of Justice. For this reason, it was deemed better to give the force of law to the treaties in full rather than to engage in a dangerous and futile attempt to identify all the provisions for which this is necessary.
An additional reason for adopting this course is the fact that it is considered that the best way to give effect to some provisions of the treaties which are mainly of an institutional nature is actually to make them part of our domestic law. Section 2, therefore, provides that from 1st January, 1973, the treaties governing the European Communities shall be binding on the State and shall be part of the domestic law of the State in the conditions laid down in those treaties.
The provision in section 2 also extends to the existing and future acts —or secondary legislation—adopted by the institutions of the Communities. In order to clarify the effect of this section in respect of secondary legislation and also the purpose and effect of section 3, it might perhaps be useful if I were to say something at this point about the nature and scope of Community secondary legislation.
While, as I have said, the treaties governing the Communities contain some provisions which are directly applicable in the national law of the member states—for example Article 85 of the EEC Treaty prohibiting various types of restrictive practices— in general the treaties provide an overall framework for the achievement of the objectives of the Communities and confer power on the Community institutions to enact derived or "secondary" legislation for the implementation of these objectives.
Article 189 of the EEC Treaty and Article 161 of the EURATOM Treaty provide that "in order to carry out their task the Council and the Commission shall in accordance with the provisions of this Treaty, make regulations, issue directives, take decisions, make recommendations or deliver opinions." Regulations have general application, are binding in their entirety and take direct legal effect in the member states without the intervention of national parliaments. However, some regulations have provisions which clearly are not directly applicable. Directives, which may be addressed to one or more of the member states, usually are binding as far as the result to be achieved is concerned but leave the method of achievement to the national authorities. However, some directives of the EEC have been held by the European Court to contain provisions which are directly applicable.
Directives are prescribed by the treaties as the instrument of implementation to be employed by the institutions in the case of a number of specific articles. For example, Article 100 of the EEC Treaty provides that the Council shall issue directives for the approximation of the laws of member states which directly affect the establishing or functioning of the Common Market.
Decisions, in the case of the EEC and EURATOM, are usually concerned with specific questions and may be addressed to a government, a firm or an individual. They are binding in their entirety on those to whom they are addressed. While the EEC and EURATOM Treaties do not prescribe that decisions are to have direct effect, the Court of Justice has held that they may have such effect. Recommendations and Opinions are stated by the EEC and EURATOM Treaties to have no binding force.
The position in regard to the ECSC is somewhat different and some of the terms I have referred to have a different meaning in the ECSC Treaty. Article 14 of that treaty authorises the High Authority the powers of which are now exercised by the Commission to "take decisions, make recommendations and give opinions".
The decisions tend to be of two kinds: what may be called "general" decisions which are the equivalent of EEC or EURATOM regulations, and "individual" decisions which are the equivalent of EEC or EURATOM decisions. Recommendations in the case of the ECSC are equivalent to directives in the case of the other two Communities in that they are binding with respect to the objectives which they specify but leave to those concerned the choice of the appropriate means for achieving those objectives. There is also a category of "individual" recommendations in the case of the ECSC for which there is no equivalent in the case of the other Communities. ECSC opinions have the same status as opinions and recommendations in the case of the EEC and EURATOM.
It will be clear from what I have been saying that while in general regulations are directly applicable and directives usually not, it is not, in fact, always possible to make a simple and clear-cut distinction on these lines between the provisions of secondary legislation.
Section 3 of the Bill empowers Ministers to make regulations to implement in this country Community instruments which are not directly applicable in member states. It is sometimes necessary to take action on a national level also to enable Community legislation which is directly applicable to be fully operative in a member state.
If I may give an example, most of the regulations setting up a common organisation of the market for the different agricultural commodities provide for intervention in the market in order to prevent prices received by farmers from falling below a certain agreed level. It will be necessary to set up an intervention agency in this country to carry out these functions. It is proposed to do this by means of a ministerial regulation under section 3 of this Bill.
Measures like this, in respect of provisions of Community legislation which are directly applicable are not, strictly speaking, measures of implementation but rather ancillary measures to enable the Community regulations to have full effect. Section 3 is also intended to cover such incidental, supplementary and consequential provisions as a Minister making a regulation may consider necessary for the achievement of the purpose of the regulation. It is likely that measures to be taken in implementation of secondary legislation which is not directly applicable or measures supplementary to directly applicable legislation will frequently cut across existing legislative provisions.
It was considered desirable, therefore, in accordance with the usual practice of our legislation, that power should also be conferred on a Minister making a regulation to repeal an existing enactment in the same field. It is also desirable—and provision has been made for this in section 3—that it should be possible by ministerial regulation to apply, with or without modification, other law because it is probable that in some cases the most effective way of making incidental, supplementary or consequential provisions would be to extend the application of an existing provision of our law, either as it stands or with appropriate modification.
The powers conferred on Ministers in this Bill to make regulations are necessary if we are to be in a position expeditiously to give effect to Community legislation so as to fulfil our obligations and to enable the benefits of membership to become available to us without delay. At the same time, the Government were anxious in drafting the Bill and in discussing it in the Dáil that there should be adequate safeguards and an effective mechanism for involving Dáil Éireann and Seanad Éireann in dealing with delegated legislation under the Bill.
For this reason the Government provided the safeguard in section 4 that regulations made under the proposed Act shall lapse unless they are confirmed by Act of the Oireachtas. During the debate in the Dáil it was agreed to shorten the period within which this must be done and under the section as now proposed a confirmation Act must be passed within six months after the regulation is made.
Taking into account the relatively long recesses of the Houses of the Oireachtas, this could, in effect, involve three Bills for the confirmation of Ministerial regulations and three debates each year. This is a much stronger safeguard than the more usual procedure involving the laying of regulations before the Houses of the Oireachtas subject to annulment within a sitting period of 21 days. And, in addition to this major safeguard, Members of the Houses of the Oireachtas will be able to have recourse to all the normal parliamentary procedures.
I would also draw the attention of Senators to the provision in section 4 for the convening of the Dáil, if it has been adjourned for more than ten days, at the request of a majority of Members, for the purpose of considering ministerial regulations made under the Act. The role of the Seanad in such circumstances would, of course, depend on the action taken by the Dáil.
I should also point out that the Bill does not oblige Ministers to employ regulations for the purpose of implementing or giving effect to the provisions of Community legislation; it permits them to do so. Very many instruments of Community secondary legislation are of a minor, administrative character and the appropriate means of implementation in these cases if legislative action is, in fact, required would clearly be by ministerial regulation. However, where it is desirable to do so, and where time permits, a Minister could introduce a Bill for this purpose.
It should also be borne in mind that ministerial regulations made under this Bill will be subject, in the same way as regulations made under other statutes, to examination by the courts which can declare null and void any regulations made in excess of the powers conferred in section 3.
It is important that we should not lose sight of the fact that by far the greater part of Community legislation as a whole is directly applicable in member states. Once directly applicable instruments have been adopted by the institutions of the Community, national Parliaments have no function in respect of them, except, perhaps, in the case of some few instruments which may require supplementary measures to give them full effect.
In comparison with the large number of directly applicable instruments, there are relatively few instruments requiring national implementation. For example, in 1971 there were some 2,900 regulations—the majority of them of a routine character—and some 410 directives and decisions. Had this country been a member of the Community last year by no means all of those 410 directives and decisions would have required ministerial regulations for their implementation here. In fact, it is estimated that the number of ministerial regulations which will have to come into force in the months immediately following our accession to the Community in order to implement or give effect to existing Community legislation—that is to say, legislation adopted over a period of some 14 years—should be no more than about 70. This figure includes regulations to be made under powers given to Ministers under existing Acts.
The actual number of ministerial regulations to be made in any given year in the future will, of course, depend on the volume of legislation adopted by the Community but it would be reasonable to make an educated guess in the region of not more than about 20. This is quite a small number of ministerial regulations when it is remembered that last year approximately 350 statutory instruments were made under existing legislation.
The Government believe that the Houses of the Oireachtas should be associated with Community decision-making, although it must, of course, be recognised that any such role will have to take account of the transfer of power which must take place from national to Community level. In the course of the debate in the Dáil on this Bill we discussed the question of the establishment of a committee which would examine draft Community legislation. The Government have already taken the decision to put in the Library such draft legislation, other than Commission proposals which deal with matters which must be regarded as confidential—for example relating to trade negotiations with countries outside the Community. I agreed with the Opposition that we should have a committee. I said that in my view the function of the committee should be to inform the Dáil— and the Seanad. If such a committee could make sure that Members of the Houses of the Oireachtas were informed about draft legislation, it would be very useful.
On the Report Stage in the Dáil, I referred to some points which required further thought before the committee could be established. One was the question of the membership of the committee and I said we should consider basing it on the ten members of the European Parliament from the Oireachtas, plus ten others. We should also arrange that the committee should have an adequate secretariat to make it possible to separate from the mass of drafts those with a high policy content and to make it possible for members of the committee to keep up with the flow of documentation.
I also referred to what I think will be the main function of such a committee later on, that is the briefing of members of the European Parliament about Ireland's position in relation to various pieces of legislation.
My view is that the committee should be established by motion, and motions of both Houses will be required.
Another question which arises is whether the work of the committee should lead to debates in the Dáil and Seanad on the development of the Community and whether that can be provided for in the motions establishing the committee.
I understand that the method of having a joint committee is to have each House make an expediency motion. If both Houses have similar motions then it will be possible to set up the joint committee. Something is in train at the moment and we may have this motion within a week.
I commend the Bill to the House.