I should like to address myself, first, to the constitutional change which has been made by the passing of the referendum by the people by such a significant and encouraging majority. In particular, I should like to ask a question as to whether we are, in the terms of Article 5 of our Constitution, any longer a sovereign, independent, democratic State. If we are, I should like to ask in what sense we are. I do not think it right in the public area to flinch from this question.
The British legal theory has been stated as being that Parliament is the power to make or unmake any law whatever. We are, today, making a law relative to a particular area of great importance and what we are doing may possibly be without precedent in the history of the State in that we may be proposing to adopt law which we will never, legally or constitutionally, be able to repeal. Both the Belgian courts and the German courts have unequivocally found that membership of these Communities—I speak in particular of what is the most important community for us, namely, the European Economic Community—involves the reception into the legal systems of Belgium and Germany of a supranatiosal legal system restricting national sovereignty.
The American position, with regard to international law, is quite different from the British and our own in that international agreements in the United States take immediate legal effect without the necessity for any domestic law to be enacted. Although it is the law of the United States that an international agreement can be set aside or repealed, international law can be varied by subsequent federal legislation. It is quite clear that in Britain that is not the position. In Britain an international agreement requires the adoption of domestic legislation to give it legal effect, while the international obligation is there.
Article 29.6 of our Constitution provides that:
No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.
All that the amendment of the Constitution, which was effected by the adoption of the referendum, has done is to remove the obstacle in the Articles of the Constitution. There is a legal view, which I am unable to assess except that it was expressed by some very well-informed people that the amendment may not have done enough to achieve what was its undoubted objective. All that it may have done—and, I am going to assume, that it has done—is to remove the obstacle in the Articles of the Constitution invalidating laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Community. That amendment would seem not to remove the necessity to do what is being done in this legislation. This amendment would not seem to remove the necessity to determine as part of the domestic law of the State the international agreements which have been made in connection with the European Economic Community.
However, Article 29 of the Constitution contains another section which may have importance in distinguishing the jurisprudential position of this country and that of the United Kingdom. Clause 3 of Article 29, which has been before the courts for interpretation, provides that Ireland accepts the general recognised principals of international law as its rules of conduct in its relations with other states. Mr. Justice John O'Byrne, in a case in 1945—The Saorstát and Continental Steamship Company versus De Las Morenas—and the Supreme Court in the State (Duggan) versus Tapley in 1952, held that this clause of this Article repealed domestic law inconsistent with customary international law. It would appear that there are other arguments than these decisions and other arguments than those dependent upon this clause of that Article to support the view that the Oireachtas has no power to enact legislation, if to do so would constitute a breach of Ireland's international law of obligation.
There are other arguments to support this view. An important argument can be based on the nature of the amendment which the people have made to the Constitution and which would appear to give these treaties, if ratified and if made part of the domestic law of this State by the determination of the Oireachtas, a status outside the Constitution and not subject to amendment. In addition to the effect that may have been caused by the amendment, there is the legal argument that where the legislature joins with other states in setting up and recognising in Irish domestic law an authority with governmental powers, the legislature cannot unilaterally determine it. This obviously arises with regard to the establishment of the different colonies of the receding British Empire and its dependent states, and, indeed, even in relation to the effects of the Statute of West-minister.
The British are slow to depart from their old stated principles, but Lord Justice Denning has in a recent case said, with a piece of typically British pragmatism, that legal theory must give way to practical politics, and Lord Haw-Haw must be hanged.
A question remains that is of importance. I raise it to discover what is the Government's view on it. It is whether it is thought that the effect of this legislation is to give a clear primacy in Irish law of community law over laws enacted hereafter by the Oireachtas. There may be some significance attached to the fact that there is absent from our legislation a provision which appears in the European Communities Act, 1972, which the British legislature has enacted. There is no equivalent to section 3, subsection (1) which incorporates as British domestic law the principles laid down by the decisions of the European Court. This may be important and I would like to be clear as to the reason for the absence of an equivalent section in our code, because the European Court itself has asserted without qualification in a number of cases— Costa versus Enel in 1964 and Wilhelm in 1969—the primacy of Community law over national law.
It may be the Government's view that it is the effect of Article 5 of the Treaty which is to be made part of the domestic law of this State, which requires each member state to take all the necessary steps to see that its obligations are carried out, and that where there is a conflict the courts, in interpreting that as part of the domestic law of Ireland, will have to give that primacy to European law which has been, apparently, decisively given by the section I have referred to in the United Kingdom Act.
I take the view that, despite the proposition of Article 5, we are a sovereign independent democratic State and that it has already been part of our law that sovereignty is and can be limited by the implication of Article 29.3 of the Constitution with regard customary international law. The enactment of this legislation will place a further effective and irretrievable limitation on the sovereignty referred to in Article 5. I am concerned to discover the actual position. I am distressed that the position should be as I think it is because we gain more by accepting this limitation of sovereignty than we apparently lose by it.
A decision to share our power is involved here with a view to an enhancement of sovereignty in terms of the economic realities which this country has to cope with and which are there irrespective of any legal sovereignty. It is not an empty phrase to argue that we are providing evidence of the existence of sovereignty by accepting a limitation on it. We should now look at the nature of the limitation which we are accepting in regard to certain significant policy questions for Ireland. We are entering a unique federation. It is a functional, if not a political federation. It is a federation whose objectives delineated the field of application of the laws capable of being enacted by the institutions of that federation. The fact that there are institutions in itself supports the view that what one is doing is entering a federation. The supreme institution which gives evidence of the federative nature of this Community is the European Court, which has been developing, in its interpretation of the treaty and the regulations, directives and decisions made under the treaty, into a system of law which is self-enforcing. There is other evidence of the existence of a federation.
The Commission has a legal personality. It is the Commission which made the agreement with GATT. It has the power to make treaties. There are also budgetary powers. I want to ask a question now which is peripheral to what I am talking about. Why do we not find in this Bill any of the matter relative to the fiscal consequences of membership of the Community? I take it that the answer will be that these will be found in some measure introduced by the Minister's colleague. There does not seem to be any legal provisions here to deal with the financing aspect of membership.
It is proper to say that there are important questions of policy arising from a contemplation of the present type of Community that we are entering. These are matters about which we, as a people, should be thinking strenuously and about which the Government and its advisers have done their thinking already, because, within that effective area where Community law applies, there is, on examination of the powers of the different institutions of the federation, little limitation on the power of Council in the Commission. Historically, I think I am correct in saying that at a certain point, as a result of French behaviour, there was a transfer of effective power to the Council where the Minister will be sitting. The assembly functions under remote and exceptional supervision and sanction. There is obligation to consult it in certain cases— as, for example, with regard to directives under Article 100 of the treaty. The Minister will be acutely conscious of the importance of giving the people in Ireland a real sense of participating in the decisions that are going to be made within this area. It is an area which may become, as time passes, in practice much larger than it has hitherto been, even if that is only because certain of the objectives of the treaty themselves imply a degree of planning which seems to involve political institutions of a kind which we have not had before, such as the whole matter of regional and social development and the co-ordination of policies leading to monetary union. Is it Government policy to seek to increase the democratic nature of the European assembly so that its members from this country are not found to arrive there by curious processes which the people know little of? Is there to be a deliberate policy to see, for example, that that assembly is itself strengthened? Is it to be national policy to seek to have the members of the assembly directly elected?
All this is going to take time. While that assembly is evolving and while Irish policy is concerned to have it strengthened and to make more obvious to the people its democratic nature, the Community could be getting a bad name in Ireland. The quality of the men in Brussels raises problems for us. Their abilities may make them impatient with the delays which people unaccustomed to their procedures may want to impose on them before the particular directive or regulation would receive the warm support of the people.
A law which is not consented to can become, as we know in Ireland, law without content, law without teeth, law which is not endorsed. During the period which must elapse before the assembly gets the power which, as democrats we must seek to give it, close attention must be given to the manner in which the Houses of the Oireachtas participate in the government of the Community.
Irish administration generally may learn much from the procedures of the Commission, may have to learn much. In our administrative way, in the British tradition, all Irish Governments have had the habit in all the different Departments affected by a particular proposed piece of legislation of keeping it close to the chest. This is not the way of the Commission. They publish drafts, circulate them widely, desire to get reaction, and Irish Departments will find it necessary within the area of the operation of the proposed new law to consult with those who know most and who may have special interests. It is important that, by discovering the sense of the Houses of the Oireachtas about a proposed regulation or directive, views other than those of people specially affected are also discovered.
The matter of the operations of this proposed committee is of enormous importance. I understand the Oireachtas Library will be provided with directives and regulations. This should include drafts in all the different stages of what is proposed to be done. From the beginning the provision of those documents should be skilfully done with the proper ordering of the matters relative to what is affected. Those of us who are to continue to butter our bread from understanding what is the law have been filled with a sense of dismay when faced with the mass of regulations which are being received into our legal system. Some assistance has been given to us by an attribution in a non-binding way of the apparently affected area. When drafts are put into the Library they must be of help to Members of the Dáil and Seanad who wish to understand what is proposed. They should be told what is thought to be the likely effect of what is proposed on existing law.
Cataloguing will be of supreme importance. I share the view which has been expressed here that no committee of the size proposed will be able to do this. Some rota system may be required. There will be some fields which certain people will know better than others. All the available skills of Parliament must be obtained. It may be troublesome for the Government if as a result of this we have debates in the Houses of Parliament on what is proposed. It may be helpful to the final acceptance by the people of what is done that they be given a sense that their views have at least been expressed, views which will be found to be cross-party ones.
The Minister will have the final say regarding this, as a member of the Council. It will be of assistance to him to know what he should say, and the longer he stays in Brussels the less familiar he is likely to be with reactions here. Inevitably the longer you are away from your native city the less you know about it. I am thinking of my native city of Waterford.
I should like to make a point regarding the amendment which has been made to the Constitution. It has removed all obstacles in the Articles of the Constitution invalidating laws enacted, acts done or measures adopted by this State necessitated by the obligations of membership of the Communities. It is significant that it does not say "present obligations"— anything in the Constitution which would invalidate future obligations taken on effectively by the agreement of the Irish member of the Council of Ministers. These may be obligations which must be accepted as part of the domestic law of the State and no part of the Constitution can be invoked to prevent these or to cause an impediment to them.
Some of the objectives of the treaties, such as regional, social, co-ordination of economic and other policies to achieve monetary union, are large and could include many things and would seem to imply political institutions. The people have not authorised the transfer of any executive, legislative or judicial powers to any future Community but this Community can begin to do many things to achieve their objectives that they are not doing now. Obligations may be imposed to achieve what is described as a European Economic Community which may be much more of a political community than they are at the moment, particularly having regard to the provisions of Article 235 of the Rome Treaty to the effect that the Council may adopt unanimously any measure to further the objectives of the treaty even if there is no express power.
Law which becomes a secret science is bad law. We are in a limited area at the moment where Community law is directly applicable. That is the area which is defined by reference to all matters which make for a unified or common not fragmented market. Community law is expressed in different terminology to that used by Irish draftsmen and lawyers. There are different styles involved. We will have to face the problem of reconciling laws in no way related. Although I have great sympathy with those criticised in the problem they were faced with, I must say that while it has been some assistance to practitioners to be told where the Government think that in a non-obliged way our laws are affected, an insufficient effort has been made to clear up in an express way conflicts that may well be there.
The United Kingdom have amended in an extensive way in schedules to the Act their laws which required amendment by way of reception into United Kingdom law of the law of the Community. I cannot see why the same has not been attempted here. There are two areas where directives are primarily operative where the British have clearly faced the problem. A directive merely defines the objective to be attained, leaving open to the national parliament the means to be adopted.
The British have amended their company law expressly to eliminate any problem. There is at least one problem of which I am aware which may arise because of the language of the directive with regard to company law and reconciling it with British company law. I cannot see why we have not done this, particularly as the directive calls on all companies to set forth their capital on their notepaper, failing to recognise that there are some companies operating under Irish law without any capital. These are companies limited by guarantee without a share capital. The British have solved that problem by enacting a section which expresses the directive and applies it only to companies with a share capital.
There is another area in which a substantial change in the law will take immediate effect from 1st January next. That is in the field of competition. The famous Article 85 deals with exclusive dealing agreements, sole agencies, licences, know-how arrangements and alleged abuses of industrial property. In the Wilhelm case, to which I have already referred, the European Court has gone very far in accepting what is known as the double-barrier theory with regard to restrictions on competition. They have accepted that you can have a national law which contains its own method of removing restrictive practices side by side with the Community law on the same matter. Provided the national law does not make illegal something which is exempted by the exemption section 3 of Article 85, both can stand. The British by amending their restrictive practices code seem to have made that possible. I do not know why we have not done this.
I should have liked to have seen in the White Paper an account not only of what has been done in this area but an account of what it is proposed to do. We will have to face this question of reconciling existing law with new laws. The field of insurance and exchange control immediately arise. The laws relative to these will change. That is quite clear from the terms of the treaty. It may take some time to change the law on insurance because of considerable problems in that field. The nature of the change to be contemplated should be given consideration, as early as possible.
In patent law if an employee in the course of his employment invents something the invention becomes the property of the employer by virtue of either an express or an implied term of employment. This may or may not be good law. The proposed European patent will make that matter one for the domestic law of the country concerned. You can have a European patent which can be got by the employee applying to the European Patent Office if he is in a country giving him the right. The employer could come to the Irish Patent Office and get a patent for the same thing. The matter could then be determined by who is there first.
European Community law has been described as a reflection on the Community level of continental administrative law. The European Court has power to annual measures which violate community law or represent a misuse of power, or it can decide that a measure should be taken where the Council of the Commission had failed to act. In the latter one the Court has taken a German concept which the French do not have.
It is very important that we develop here a proper system of administrative appeal tribunals. May I make this point which appears familiar to the Minister? Because of the possibility of proceedings for mandamus, prohibition or certiorari existing in relation to these tribunals, it would seem that the tribunals will not be the tribunals of last resort. There will be no obligation on them to refer Community questions to the European Court. This will mean that business enterprises, making their case before such tribunals and invoking Community rights, may find themselves, because of the existence of the limited powers as we know them a mandamus, prohibition or certiorari proceeding, unable to look to the European Court for assistance in the exercise of their Community rights. The matter may be of considerable human importance where, for example, we are dealing with the rights of migrant workers who may be claiming social insurance rights here and who may be unable to claim their rights beyond the tribunal in question.
It must be remembered that the business enterprise or the workers would appear to have no right of recourse against this State before the European Court. The best it could do would be to get the Commission to bring the member state, Ireland, to book if it was failing through this tribunal to give the European Community right to the particular enterprise or person.
What way will the request for preliminary rulings in inferior courts work? I presume it will be regulated by rules of court. Could we be told the state for which the amendments to these rules may be? What is the policy with regard to the question of the refusal of an inferior court to refer a matter to the European Court? Is this matter capable of appeal to the superior court? If it be not, should it not? Does it involve a change of the substance of law with regard to our courts to give this right of appeal? It would be proper to have it well ordered so that these matters should be finally determined by one court here which will get and develop experience on the matter.
I would end with a simple question —there is nothing barbed about it. It is a simple question which occurs to anyone who reads the equivalent UK provision. The UK have limited the powers to make subordinate legislation by providing that there should not be included any power to make any provision imposing or increasing taxation, or to make any provision taking effect from a date earlier than that of the making of the instrument containing the provision; or conferring any power to legislate by means of orders, rules, regulations or other subordinate instrument other than rules of procedure for any court or tribunal; or to create any new criminal offence, and so on. There are no similar restrictions in this Bill. I am sure that the matter has been considered and it may be that the protection will be found elsewhere. I should like to know where that protection is and if it is understood that there are these restrictions, because we have amended the Constitution by removing any provisions which would invalidate any of the acts or measures of the Community. I am not personally clear in which manner the Constitution can be invoked to protect the people from, for example, subordinate taxation or retroactive legislation, and so on. I would be grateful if I could have some information on these points.
