Seanad Éireann díospóireacht -
Wednesday, 29 Nov 1972

Vol. 73 No. 13

European Communities Bill, 1972: Committee and Final Stages.

Section 1 agreed to.

SECTION 2

Question proposed: "That section 2 stand part of the Bill."

Mr. Alexis FitzGerald

I should like to repeat what I said on the Second Reading of the Bill with regard to the manner in which this new system of law is being received into our legal system here without any attempt being made in the instrument enacting it to harmonise the existing provisions of the domestic law, where they have to be harmonised, with the new code of law. The United Kingdom, when enacting similar legislation, set out the whole schedule of enactments which were amended by the Act receiving into British law the Community law. The Act itself contains a number of sections, one at least of which should be repeated by a similar type of section in this Bill. That section clearly sets out in relation to companies the means by which the first directive on company law is to be complied with and amends British legislation to the extent required for compliance with that directive. That is section 9 of the European Communities Act.

Section 10 makes a similar amendment to the Restrictive Trade Practices Act. I presume an examination has been made with regard to the Restrictive Trade Practices Act and a series of Acts which were enacted pursuant to the principal Act, to see to what extent, if any, it is necessary to have a formal amendment. All that has happened is that Senators have been circulated with a memorandum setting out, in a way which is declared to be not exhaustive, the legislation which it is thought will be affected by the reception into our system of this new law. Why has it not been possible for our Government to provide us with the legislation with which the British Parliament has been provided, showing the actual effect on existing legislation of the law which we are now receiving into our system? Why do we not have this for the assistance of the countless business enterprises which will be affected in their obligations as of and from 1st January next? Why are we not told, today, and not by virtue of some ministerial order to be made before the 1st January next, what precise means it has been decided should be adopted to achieve the objective of the first directive?

It is not necessary to follow the same means which the British have followed. Maybe it would be easier, if we wanted to take an easy way out, to draft, for the Report Stage, a parallel to what the British have done. They need not have followed the course they did. There has been debate within the profession in England as to whether they have been unwise in what they have done and in adopting the precise method they have adopted. It is important, in regard to such a matter which affects the competitive position of Irish business enterprises that they should know what is the Government's view and that we should have an opportunity of saying whether we think the Government's view is right.

I suspect that the reason why we have been merely told of the legislation which it is thought is affected and have not been provided with a schedule of the actual nature of the amendments is that there was a possibility of an omission. But can we not have a catch-all subsection to deal with any omission? Let the omission be dealt with by ministerial regulation and the known affected amendments be dealt with in a schedule to this Bill.

It will be extremely difficult for people to know what their rights and obligations are. It will be extremely difficult for people trained in one legal system to advise us as to the meaning and significance of language coming from the minds of people trained in another legal system. It will be very difficult to harmonise these two groups. We ought to have a decision by the Government presented to the Legislature, a debate on that decision and a measure adopted. I understand that there will be regulations and then we will have Acts enacting these regulations. I presume we will be able to table amendments to the regulations which will be the matter of enactment at that time.

I should like to know if I am correct in understanding that that is the position. It is a less desirable position than the one we would be in today if we had before us all the proposed amendments, because, as and from the 1st January, we will be able to see if they are in the form we think best. Whereas the regulation which the Minister will make under the appropriate section of this Bill will have force and effect from the time of his making it and will not depend during its lifetime, prior to the enactment, for its validity during that time, we may have a curious situation in which a ministerial regulation under this Bill will be operative for a time and then may be amended by virtue of a debate in this House or in Dáil Éireann. I know someone objected to some other Senator saying that the Minister's Department had not done their homework. I do not wish to use any particular phrase with regard to this matter. The amount of homework they have chosen to publish is before us. It is patent to me that, with the 1st January coming so quickly, they must have done a great deal more homework than that and that there must be a set of regulations being drafted in a whole series of Departments.

It is unfortunate for Irish business houses and Irish lawyers that they are not given the same assistance here by this administration and through the processes of this Parliament as their British counterparts are given by the decision of the British Government and administration and the debates which took place on these very amendments in the European Communities Bill. I should like to repeat in this way what I have already said on Second Reading.

Mr. E. Ryan

The kind of ideal which Senator Alexis FitzGerald has in mind might be possible in some of the European countries where they rely almost entirely on statute law, and where that statute law is consolidated regularly. It would be impossible to achieve a situation in this country where any law passed by the Government at the pesent time would show exactly what the law of this country was as affected by the regulations and so on of the EEC. Even at the present time laws passed here, although they usually attempt to show how they affect previous legislation, do not always do so. We are never quite sure what the law is on any particular subject because the laws do not relate back with complete efficiency and because previous Acts are very often affected by decisions of the courts. Consequently, there is no certainty about the law in this country, which is why lawyers make a living to a great extent. It would be quite unrealistic to expect anything to be done at the present time which would show us exactly how we will be affected by the regulations and directives which have been passed by the European Community since its inception. I agree with Senator Alexis FitzGerald that this would be a desirable situation. I hope that the laws of this country which are affected by EEC directives and regulations will be amended and brought up-to-date in the light of these directives as soon as possible.

When that is being done we should also make an attempt, which I have on many previous occasions asked Ministers to do, to consolidate the law on a particular subject, to bring all the previous law up-to-date and incorporate it in one consolidated Act. This has been done on a few occasions only. It is practised very widely in some European countries and goes a long way to enable both the lawyer and the citizen to know what the law is on a particular point. Having regard to the present situation in this country and to the fact that the law is not certain in most cases, having regard to the fact that even statute law is very often affected by decisions of the courts and amended or qualified in that way, it would be impossible to bring in any Act at present which would give any certainty.

Having spelled out those difficulties and the physical difficulties of bringing in the type of Act which Senator FitzGerald suggests, I would not wish to be taken as saying that I would not like the Minister and the Government to do everything possible to bring laws up to date and to enact or amend laws so as to take cognisance of the directives of the EEC. I hope this will be done as soon as possible but, from a realistic point of view, I feel it will take some time.

Mr. Alexis FitzGerald

I do not want to make a song and dance about this, but the reason I think it important is that we are setting the pattern for our future operations with regard to the reception of European Community law. I cannot agree with Senator Ryan, despite his eminence and his membership of a superior body to my own in this field, that the law is not certain. It is ascertainable. You cannot regard a court as doing anything more than determining what is the meaning of what we enact. I agree with him that the procedures we have allowed develop over the years are not good and are capable of being changed. I agree with him completely with regard to the importance of codifying to the extent that is possible, because one knows that the Minister's adviser will have a file with the original Bill amended to take account of what subsequent legislation has done. We know there is and must be a document on which the advice the Minister is getting can be drawn out without having documents placed all over the floor, which is the ludicrous position at present. In fact, in one of the Rent Restriction Acts they did something which was most helpful. They put into a schedule the effect on the Principal Act of the amendment effected by that Act. As a result, unfortunate solicitors can begin to think about it because they are actually looking at the effect of the amendment and can read it in one piece. They do not have to go from one document to another fearing that, with the intervening telephone calls, they may have missed something.

Mr. E. Ryan

This is one of the rare ones.

Mr. Alexis FitzGerald

Yes, and we should have much more of it. I think it important that the Legislature speak out on this. I should like Senator Ryan to tell us why we could not have had a measure such as the one I am going to read out.

The enactments mentioned in Schedule 3 to this Act, being enactments that are superseded, or to be superseded, by reason of Community obligations and the provisions made by this Act in relation thereto, or are not compatible with Community obligations are hereby repealed to the extent specified in column 3 of the Schedule with effect from the entry date or other date mentioned in the Schedule.

Why could we not have something along those lines? If it was possible for the British Ministry why has it not been possible for the Irish Ministry? If you are a British lawyer you just have to turn to the schedule. You can take the original in pieces and you can, and are told to, amend it by reference to the schedule. There will have to be a series of orders and regulations in relation to future directives.

I am not quite clear on one point and perhaps the Minister could help me. With regard to the whole existing code of law, is it proposed to make ministerial orders which will spell out the effects of the reception of regulations, directives and decisions on our law? When the Minister is dealing with the section perhaps he could clarify that point. I do not know whether existing laws are to be dealt with in that way or whether that is to be left in limbo. If that is the position we are going to find ourselves in a worse situation than British people, who have had it done for them.

With regard to the European directive on company law, there will be an obligation on this country from 1st January next. In Britain the means by which the objective of the directive was to be attained has already been enacted and will take effect on 1st January. Are we to have an order on this and, if we are to have an order, could it not be a section in this Bill instead of being an order to be made in the future? It is a very important matter and affects the vast majority of our business enterprises. The case is similar in the restrictive practices code which I would find very difficult to adapt to this new code.

Minister for Foreign Affairs (Dr. Hillery)

This is a Bill of principle. In relation to the two matters raised by Senator FitzGerald with regard to company law and restrictive practices, there will be amending legislation, probably by delegated legislation, which will spell out what the Senator has in mind. It will be done by ministerial regulation and not in this Bill of principle. Ministerial regulations will be drawn up to implement directives of the Community. Each ministerial regulation will make it quite clear what legislation is being amended by it, and to what extent.

Where we differ from what was done in Britain is in terms of European Community regulations which are directly applicable. Being directly applicable and bringing them into our law the principle or practice of implied repeal functions and the Community legislation would be binding and have precedence over any legislation in our own law before that. The repeal is implied. The point at issue then is: why did we not spell this out? It is a matter on which we differ, whether it is desirable or not. Both in Britain and here a list was compiled and it is quite clear to all Departments who had to work on the list that they could not say that the list is complete. All they could say is that this list is a list of the legislation affected. After that, research by the people concerned will find out in what way it is affected.

It was thought undesirable to repeal a list which was incomplete. People may feel that what is not repealed specifically and in statute form is not affected by Community legislation. This would be misleading, so it was decided to present the list. The point also arose that the extent of the conflict, and therefore of the implied repeal, would not always be clear and would be a matter for definition by the European courts.

It was therefore thought desirable to indicate to those who will be concerned the legislation which we know will be affected, and to let those who are interested in specific areas find the extent to which it is repealed. It may not be possible to determine that without going to the courts, but certainly we felt it undesirable to present a list of repealed legislation because it would be incomplete and misleading. From listening to the people who have much more acquaintance with the law than I have, a good case has been made for changing our code. A case has been made for frequent statutory revision and the Taoiseach promised this when he was speaking in the Dáil.

Mr. E. Ryan

It is stated in the memorandum that the list is comprehensive but not exhaustive. This suggests that the various Departments within the next few months may come across further instances where laws are affected by EEC regulations, even up-to-date regulations. Is there any provision being made whereby the Houses of the Oireachtas and the public generally could be informed of subsequent effects on legislation which may be discovered within the next year or so?

Dr. Hillery

Any time anybody explains anything at length it confuses matters by use of the wrong word in the wrong case. As we discover what is affected it will be our duty to make it clear. In the Dáil I said that the State Departments would help people to find their way through the mass of documents at the beginning. After that I will see what can be done by the Government to publish a further list.

Mr. Alexis FitzGerald

It is a most confusing list.

Mr. Keery

Arising from what Senator FitzGerald said, may I draw the Chair's attention to what I consider to be an important matter? In the course of his opening remarks, Senator FitzGerald referred to what he said during the debate on the Second Reading. I have not yet received a copy of the Second Reading debate. It is entirely unsatisfactory that we find ourselves in this position.

An Cathaoirleach

In reply to the Senator's point, there was a certain delay due to a problem with the printers in getting out the debates for the two days last week. They are now available. The Chair regrets the delay in this instance but it was due to circumstances which nobody in this House could avoid—it had something to do with the printers.

Mr. Keery

I collected my post immediately before the start of the Seanad sitting and it was certainly not in circulation then.

An Cathaoirleach

They arrived in the House only this afternoon.

Mr. Keery

As we are now continuing this debate, I wonder could arrangements be made to have copies circulated to us in our seats?

An Cathaoirleach

That will be done.

Question put and agreed to.

SECTION 3.

Government amendment No. a.1:—

In page 3, after subsection (2), to insert the following subsection:

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

Dr. Hillery

Suggestions were made on Second Stage and in the Dáil that there should be certain limitations on the power to make regulations. Even though it is quite illogical to adopt any of them because the principle of the Bill is that a regulation has to be confirmed by legislation, that is, by both Houses of the Oireachtas—it will lapse if this is not done—at the same time, the power of making a new criminal offence should be limited; and this in relation to the penalty that it should be possible to impose by regulation. I therefore put to the House this amendment confining the offences which may be created in the first instance by ministerial regulation to those that cannot be tried on indictment—in other words, to confine it to summary offences dealt with by the District Court and excluding offences tried by judge and jury, so that the offence created by regulation could not carry any greater penalty than could be imposed by the District Court.

This amendment does no more than to make it necessary for indictable offences to have legislation in the first instance. If we did not have the amendment you would have to have legislation anyway, which would be after a lapse of up to six months after the regulation was made. Having heard the debate in both Houses I became convinced that it was desirable to have it there and I recommended this amendment to the House, although it may appear illogical.

Mr. O'Higgins

Even with the ministerial amendment, I do not feel happy about section 3, for the reasons I gave on the Second Stage. I do not feel happy that the two Houses of Parliament should, in the manner in which it is proposed in this Bill, hand over virtually complete power to members of the Government to legislate by ministerial order. There is some semblance of protection or some modification in the position arising now out of the amendment which the Minister is proposing in that it is now being spelled out that regulations to be made under this section shall not create an indictable offence.

At the same time, we should consider what we are doing in this section. We are vesting in Government Ministers the power to make regulations which will have the force and effect of law by giving them power to make regulations which may contain incidental supplementary and consequential provisions as appear necessary to the Minister making the regulations. Without any check, let or hindrance whatever, it depends entirely on the mind of the Minister for the time being and possibly on the mood of the Minister for the time being as to whether a matter is to be regarded as necessary.

I would feel happier if there was some adequate safeguard in this Bill which—to use an expression that I think was used by the Minister on the Second Reading—would involve the Dáil and the Seanad in legislation which, by the conduit pipe of ministerial regulations, would have the force of law in this country. As it stands, I do not think the Bill involves either the Dáil or the Seanad sufficiently. It does not provide reasonable safeguards or checks on the mind or mood of the Minister for the time being in relation to regulations.

Mr. Keery

I mentioned on Second Stage that I did not see the weight of Senator O'Higgins's argument and I felt it had been adequately dealt with in the debate in another place. I should like to reiterate one of the points made there which seems to me to be extremely important.

The impression given was that the making of regulations arising under this legislation would not be subject to the normal procedures of the Oireachtas and would not be subject to questions and possible motions. It goes without saying that the conventional use of the Houses of the Oireachtas as a means of scrutinising delegated legislation made under this section is there, and of itself is an adequate safeguard. This section has been mentioned in a debate and in a newsletter published by the Irish Council of the European Movement. The type of criticism made by Senator O'Higgins is repeated in this newsletter. It was also stated in a newspaper article and it was implied that because someone, like myself, for example, was a member of this council therefore we stood over the type of criticism found in this newsletter, issued by the Irish Council of the European Movement, dated Friday, 17th November, In other words, it was implied there that I would stand over the type of criticism made by Senator O'Higgins. That is not the case. I should like to make that clear for the reasons I have given in this debate.

Mr. O'Higgins

I should like to be able to follow Senator Keery's reasoning on this. It does not seem to me that he is correct, but I should like to follow him on this if he is correct.

He said it is wrong to argue that regulations made under this section would not be subject to the conventional procedures in the Houses of the Oireachtas. Did I understand him correctly? It appears to me that the making of regulations under this subsection is not subject to what I would regard as the conventional procedures. The whole concept of the Government choosing to act by means of ministerial edict rather than by ordinary legislation seems to me to run entirely counter to conventional procedure. Surely the conventional procedure in any parliamentary democracy is that, where it is feasible to do so and where there is no particularly pressing reason against doing so, any act which is to have the force of legislation should be introduced in the ordinary way as legislation introduced as a Bill initiated either in this House or the other House of the Oireachtas. That is the conventional procedure.

When we were discussing the terms of the Referendum Bill I said that my quarrel was that the Government had deliberately chosen, by means of section 3, to give pre-eminence to the question of ministerial order. The Minister made the point on Second Reading that the Government are not stopped from this section from proceeding by means of the conventional procedure initiating a Bill in the Dáil or Seanad. They have not given up their right, entitlement and power to do that. They are giving more than a broad him that they have not the slightest intention of introducing legislation in the ordinary way. They are taking power under section 3 to bring in any of these bits of law which are to operate here and which are necessitated by the obligations of EEC membership. They are to do that by means of ministerial order.

If it were done by the conventional procedure of legislation in this House or in the Dáil the position would be that Senators and Deputies would have an opportunity of examining as to whether the legislation was necessitated by the obligations of membership of the Communities. When it is done by ministerial order Deputies and Senators have no opportunity of examining that aspect of the matter. Under section 4, the regulations will have statutory effect and, unless they are confirmed, they are spent after a particular time. When they are made they have statutory effect without any Member of this House or the Dáil, apart from the Minister making the regulation, having had an opportunity of forming a view as to whether what is being done is necessitated by the obligations of membership. If it is not necessitated by the obligations of membership it may well be unconstitutional. It could have had its effects and been spent before there could be any question of challenging it on the grounds of constitutionality.

If it were done by the conventional procedure of legislation then every Member of the Houses of the Oireachtas would be able to examine the situation and form their own opinions on it.

Mr. E. Ryan

I wonder what the Senator meant by "the conventional means of legislation".

Mr. O'Higgins

I was adopting Senator Keery's phrase.

Mr. E. Ryan

There is no such thing as a single conventional way. Some measures are passed by Bills and some others by regulations. If the Senator read the debate in the other House he will know that approximately 350 regulations were passed last year. It cannot be said that the conventional way is to pass everything by a Bill. The contrary is true because up to now many Bills and regulations passed through these Houses by way of regulation whereas under the procedure provided in this Bill all regulations implementing directives will have to be passed by a Bill because a Bill will have to be passed approximately three times every year incorporating the regulations that are made. Because of that Bill these regulations will become enacted by an Act. In fact the position is the reverse of what Senator O'Higgins has said as far as Community legislation is concerned. We are ensuring by this Bill that it will all go through the House by way of a Bill and not merely by regulation. The difference between having to lay it before both Houses and having 21 days to consider it and on the other hand making it necessary to put it through these Houses every four months, approximately, is very little. This gives a better opportunity to examine the regulations, and to put them through as a proper Bill.

If an occasional regulation comes through the Houses, the ordinary processes of examination are still available and either House may put down a motion or ask a question at any time. By the provision in regard to every four months, a much better system is provided for examining the regulations than the system which is suggested of laying them before each House to annual them if necessary.

Mr. Russell

I am a little confused by Senator Ryan's remarks. I should like to quote from the Minister's speech:

Article 189 of the EEC Treaty and Article 161 of the Euratom Treaty provides that "In order to carry out the 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."

Where does the question of a Bill arise here? The Minister continued:

However, some regulations have provisions which clearly are not directly applicable.

If I understand it correctly these are the ones which require ministerial intervention.

Dr. Hillery

A Community regulation is directly applicable in all the countries without any action by our Government. A Community directive is binding in its aim but the national Government can decide how this is done. In this case we are speaking about ministerial regulation. The word "regulation" has two different meanings—a Community regulation which is directly applicable; a ministerial regulation which would apply Community directives.

Amendment agreed to.

Mr. McDonald

I move amendment No. 1:

To add to the section a new subsection as follows:—

"(4) Every regulation under this Act shall be laid before Seanad Éireann as soon as may be after it is made and Seanad Éireann may, within the next twenty-one days on which it has sat after the regulation is laid before it, amend the regulation in a way which, in the opinion of any Joint Committee of Dáil Éireann and Seanad Éireann set up for this purpose, is consistent with the provision of the original Community instrument which the regulation seeks to implement."

I tabled this amendment because I feel that this House can play a more effective role than the one which the Government appear to be setting. This amendment is for the purpose of dealing with specific regulations of major importance which may come up from time to time. A Senator who might wish to do so could table a motion that Seanad Éireann takes note of a particular regulation, and it would then fall into the category of our normal motions and would have to be taken within 21 sitting days after being tabled.

If every six months we have a Bill which will embody a large number of regulations or directives it will be difficult for the House to come to grips with a specific subject. If within a short period after the tabling by any two Senators of a motion such as I envisage, the Bill is introduced then there is nothing wrong with taking the motion along with the Bill. That would give this House an opportunity to deal with important regulations as they arise in the period between the half-yearly Bills which the Minister has promised to introduce. The machinery should be used for this purpose.

The more discussion there is in this House and in the Dáil the better will the people be briefed to deal with the problems arising from the EEC. There should be a free flow of information and the people with responsibility for acting on the directives or regulations should have the advice of the Members of the Oireachtas. It need not be mandatory to take that advice but there would be great benefits from the wide cross-section of views brought to bear on any problem discussed in this Chamber. This amendment should not conflict with the Government's amendments or agreement to have discussions twice yearly in this House. I ask the House seriously to consider this amendment. This House is capable of dealing with technical matters which may arise occasionally and it would be a pity not to utilise the resources available.

Dr. Hillery

Senator Ryan dealt with this in his speech. It raises the question of how Senators and Deputies will know what is going on in regard to Community legislation and what is projected in ministerial implementation of Community directives.

The vast bulk of Community legislation will consist of regulations directly applicable over which the Houses of the Oireachtas will not have a direct say. At the same time, it would be desirable for Members of the Seanad and the Dáil to know so far as possible what is developing in Europe and what may be decided by the Council of Ministers, on which we will have a representative. For this reason we have taken the decision to have all except the confidential documents of projected European secondary legislation or regulations placed in the Library where they will be available to anyone who needs them.

I personally felt, because of the mass of documentation, that if Senators and Deputies were to deal with this individually they could not deal with anything else and could not deal adequately with the amount of legislation going through. There were approximately 2,900 regulations last year, 90 per cent of which were on the common agricultural policy. It is just the same as if a Member of the Seanad or Dáil now wanted to know every decision going on at every level in every Department in the State. It is quite unnecessary; but it would be necessary for Members of the Oireachtas to know that a matter of principle is being raised.

A Senator mentioned on Second Stage the question of the right of establishment on land. There is a draft there. If there are drafts which have political consequences, there should be a system of finding these. My own suggestion was that there should be a secretariat to a committee. The committee will be very much part of the overall picture, but at the moment we have not got very far. We have agreed to have a committee and we want to have adequate servicing of that committee. It will be a joint committee, but the parties have to agree on some matters on which they are not agreed at the moment. This committee would make it possible for Senators and Deputies to examine what is developing in Europe and perhaps also brief the members of the European Parliament coming from this Oireachtas on how they would deal with it in the European Parliament.

In terms of the application of directives, I should like the Bill to be looked at in its entirety because we are inclined to think of ministerial regulations instead of legislation. As Senator E. Ryan pointed out, what we are concerned with in this Bill is not an alternative to legislation. It is ahead of but in addition to and would lapse in the absence of legislation. But this is a much more powerful safeguard than the laying of a regulation before the House for information. It has the safeguard of having to pass through every process of legislation through Dáil and Seanad or else it lapses as distinct from laying it before the Houses and waiting for somebody to put down a motion to deal with it.

Mr. O'Higgins

What happens in the case of a regulation, the effect of which is in itself to be spent inside six months?

Dr. Hillery

The answer to that is that it will be necessary for Ministers to have the power to make regulations. As has been pointed out, there were 350 such regulations last year and nobody questioned the constitutionality of them. It is only in terms of Europe that somebody has raised the question of constitutionality, which is not logical. If delegated legislation is unconstitutional in relation to the European Bill it is unconstitutional in relation to the rest of our legislation; but we will need it to be able to fulfill our obligations.

There is no onus on a Minister to provide by regulation for something which may appear to him to be more desirable to have legislation for in the first instance. From my experience as a Minister, I think any sensible person envisaging legislation to be confirmed within a maximum of six months would have to take into account the attitude of the Dáil and Seanad and certainly would have to take into account the effect of any such regulation, even though it might not be allowed to lapse or its being allowed to lapse would not have an effect. The effects of treating legislation in such a manner can be seen.

It is desirable that Ministers should have the power. There is no onus on them to use it rather than going for legislation in the first instance. The pressure will be on Ministers to make regulations which will stand up to scrutiny and which it will be possible to get through the Oireachtas easily. The Oireachtas could have a great deal to say to a Minister who makes a regulation unnecessarily. Another safeguard is private legislation. Legislation could be brought in to the Dáil or Seanad to annual a regulation.

Mr. O'Higgins

Would there be a guarantee that it would be given a First Reading?

Dr. Hillery

I find that in both Houses most of the arguments made, even though they are applied to this Bill, have been against the majority rule, if the Senator knows what I mean. Every regulation made by a Minister will have to be notified in Iris Oifigiúil. There was a suggestion here on Second Stage that this should be circulated to the Seanad and Dáil and I think this should be done. I should have done it before now but I will have to find out if there is any reason why it should not be done. I have asked that it be done.

Mr. McDonald

One has to requisition it. I get it.

Mr. E. Ryan

I am glad to hear the Minister confirm that it is the intention to set up a joint committee of both Houses. Together with the provisions of the Bill, if this committee have an adequate secretariat and if they are in a position to examine draft EEC regulations, directives and decisions and to sift out the important ones — those containing matters of policy, those that are important even if they are not matters of policy—from the ones that are purely routine, they will have an opportunity of seeing these before they are actually directives and regulations of the Community. They will be in a position to exercise some influence on the Minister, on the Council of Ministers and on the European Parliament to amend these regulations or in some cases to stop them. This is certainly the very best way we can ensure that no regulations will come before the Houses of the Oireachtas which are objectionable in any way. If this committee are set up and has the secretariat, has the ability to influence the legislation of the Community, that together with the power provided by this Bill is the very best way to ensure, as far as this is possible, that no regulation will be passed in the Houses of the Oireachtas which will be harmful to this country.

Mr. Russell

Could I ask the Minister if this joint committee of the two Houses would act before or after the ministerial regulation is made? Would it advise the Minister before he made the regulation?

Dr. Hillery

The experience in other countries is that it has been very difficult for such committees to keep themselves abreast of the amount of documentation and legislation going through. They would be aware, I hope, of the directives and the broad aims set out in the directives which would have to be implemented by ministerial regulation or by legislation in the first instance.

Mr. Russell

They would have an opportunity of doing so?

Dr. Hillery

The mass of the work would be such that they would perhaps report to the House so many times a year and make sure that all information could be readily available to Members who seek information so that Deputies and Senators would be better able to discuss these matters. I could not guarantee that they would be able to keep up with all of it nor could I guarantee what influence they would have on the ministerial regulations, as that would come at a later stage.

Mr. Russell

Could they get to the Minister before he made his regulation?

Dr. Hillery

By questions, motions and private legislation, yes.

Mr. McDonald

Do I take it, then, that the position will be that we will have at least two and possibly three Bills, that is, three opportunities during each year to discuss a wide cross section of things dealing with EEC legislation? The only danger I see is that, coming into August, we may have the Leader of the House, with all due respect, trying to shove it into the night session before the August Bank Holiday. The House should be given a fair opportunity of discussing the legislation. I will, with the permission of the Chair, seek to withdraw the amendment.

Amendment, by leave, withdrawn.

Section 3, as amended, agreed to.

SECTION 4.

Mr. O'Higgins

I move amendment No. 2.

In subsection (2), line 35, to delete "a majority" and substitute therefor "at least one-third".

This amendment deals with subsection (2) of section 4. Subsection (1) of this section provides that regulations under the Act are to have statutory effect and, unless they are confirmed by an Act of the Oireachtas passed within six months, they will cease to have statutory effect. Subsection (2) of this section is the one which provides that if the Dáil is adjourned for a period of more than ten days when the regulations are made, it will be open to a majority of the Members of the Dáil, by notice in writing to the Ceann Comhairle, to require Dáil Éireann to be summoned. In his introductory speech on the Second Reading the Minister referred to this and directed specific attention to the right of the majority of the Members to have the Dáil summoned in such circumstances. I do not wish to misrepresent the Minister's attitude in any way but he seemed to regard section 4, as it stood, as being the safeguarding mechanism involving the Dáil and Seanad in this matter of regulations. The point I wish to make in this amendment is a net one. If it is necessary to get a majority of the Members of the Dáil to sign a notice calling on the Ceann Comhairle to summon the Dáil, in practice that involves getting the permission of the Government to do so. Without the permission of the Government or their Chief Whip there will not be a snowball's chance in hell of getting a majority of the Members of the Dáil to sign such a notice. The safeguard which the Minister seems to regard as having been written into this Bill is a puff of smoke. It is a paper bulwark and nothing else.

The suggestion made in this amendment is a realistic one and I would strongly urge the Minister to accept it. If not less than one-third of the Members of the Dáil in the circumstances set out in subsection (2) of section 4 request the Ceann Comhairle to summon the Dáil there should be the statutory obligation on the Ceann Comhairle to do so. I am not trying to be obstructive or controversial. This legislation will apply whether the present Government or another one are in office.

When I talk about subsection (2), as it stands, in practice involving the permission of the Government Chief Whip, that applies no matter what party or combination of parties are in Government. The position would be better safeguarded if the Minister accepted this amendment, If the Minister does not like the particular fraction I have chosen, that is one-third, I would have no objection to any other reasonable proportion being inserted. It is unreasonable to insist that in such circumstances the Dáil can be summoned only at the request of a majority of the Members. My suggestion of one-third could be changed to 40 per cent if preferred. If there is a substantial minority, which by its very size would represent a considerable Opposition voice in the Dáil, who request that the Dáil should be summoned, in these circumstances, having regard to the nature of this legislation and the expressed intention of the Minister of writing into the Bill a mechanism for involving the Dáil in these procedures, this would compel the Ceann Comhairle to reconvene the Dáil.

Mr. Russell

I wish to support Senator O'Higgins in his remarks. They are in line with some remarks I made on the Second Stage of the Bill. It is a well-established practice, if not in the Houses of the Oireachtas, in the local authorities that a minority of any county council or other body can request the chairman to convene that body. It gives due regard to the right of a reasonable minority. It would be an added safeguard in this Bill if the Minister accepted the amendment put down by Senator O'Higgins or a similar amendment signifying a bigger minority. It might not be practicable for the Government party if they so wished to command a majority. Therefore, the House could not be recalled. It would be realistic in current and future circumstances if we could agree on a substantial minority for the reconvening of the House. I support Senator O'Higgins' amendment.

Dr. Hillery

It is a funny kind of section. Quite clearly, as the Senator has said, to get a majority you would want to be in Government. Then the Opposition would not have the majority to set aside a Government regulation. On the other hand, if only one-third of the Members of the Dáil were in favour of recall they would not be in a position to change the regulation not having a majority. I do not feel very strongly about it. If the House feels happy with Senator O'Higgins's amendment then I will accept it. Does the Senator understand what I mean?

Mr. O'Higgins

I do.

Dr. Hillery

I think it is meaningless. It has been taken from another Act. If one-third of the Dáil wish to re-convene the Dáil to change a regulation they will lose the vote.

Mr. O'Higgins

I see the force of the Minister's point. Although I know it is implicit that this operation is passing it, I feel I am not wronging the Minister when I say that he presents this section as involving the Dáil and the Seanad. Looking at it from that point of view there is virtue in a substantial minority of the Dáil being able to have the matter brought forward for consideration.

Dr. Hillery

I think I can. The purpose of the section was to make it possible, if a regulation were brought in during a long recess, for the Houses to use the procedures, Question Time, motion and legislation. I can accept the amendment.

Mr. Keery

May I ask a question arising on this point? Is it quite clear that, if the request was made for the Dáil to be recalled, it would only be for the specific purpose of dealing with matters arising under this Bill?

Mr. Russell

It says in subsection (2) "If when regulations under this Act are made..."

Dr. Hillery

I am advised that the Dáil could be recalled under the section for the purpose but, once recalled, it has a life of its own in session and is sovereign. In practical terms, a Minister making a regulation which might involve the recall of the Dáil would visualise this happening and make the regulation when the Dáil is in session.

My only problem now is the amount of time this will add to the time we are spending in dealing with the Bill. I will accept it.

Mr. O'Higgins

I do not want to be obstructive or throw any spanner in the works, but I feel a majority is unreasonable. I want to avoid going into percentages because arguments may follow about 41½ people. That is why I suggested a third.

Dr. Hillery

I think we can accept it now and it will not delay the House.

Amendment agreed to.

Section 4, as amended, agreed to.

SECTION 5.

Government amendment No. 2a:

In page 3, before section 5, to insert the following section:

The Government shall make a report twice yearly to each House of the Oireachtas on developments in the European Communities.

Dr. Hillery

In the Dáil, Deputy Ryan had an amendment which was reasonable. It would have provided for reporting to the Oireachtas twice yearly on the development of the European Communities. At that time I had hoped that the Whips of the different parties would have made their arrangements about a committee which would deal in its terms of reference with the question of a debate or report to the House. I undertook that, if we did not have a committee, I would put in an amendment to bring about the situation in which we would have the twice yearly debate. We will have the committee but to fulfil my obligation I put down this amendment. I propose it to the House on that basis.

Mr. Alexis FitzGerald

I certainly accept this amendment. There is no point in unnecessary repetition but the point cannot be made too often of the importance of getting ordinary people's views on and reactions to proposed legislation before the member of the Council makes up his mind as to what would be acceptable to him. Procedures which exist with regard to draft regulations and directives which affect persons, professional bodies and so on are likely to be the kind as standing out of the ordinary procedures of government. These will be affected interests, specialised views, not necessarily a popular reaction. It is very important that a popular reaction against a particular proposal be discovered by a debate in this or the other House. It is very useful that this Bill should contain a sanction which will ensure that such debates take place. It would be relevant to any report to deal with omissions from the report, if such there were, and to deal with the whole range of the developing European policy. This question of participation is of vital importance to getting the laws acceptable to our people. If they think they are being imposed upon without their views and reactions being canvassed very unhappy reactions can follow. I and the other members of my party welcome this amendment.

Mr. Keery

I should very much like to welcome this amendment. It will be very useful both to the Oireachtas and the people generally. What is in mind here is the type of report which was issued in the course of the negotiations for our entry to the Community. These were very full reports on the progress of the negotiations and they were extremely valuable as they were presented from time to time.

Under other legislation and in other matters there is provision for annual reports of various kinds. Often, for one reason or another, these reports can run maybe 12 months behind schedule; you might get two reports in the one month, or something of that kind. I should like to appeal that the reports be issued regularly. It is explicitly stated in the Ministers and Secretaries Bill, which has been circulated, that the report of the Public Service Council should be published promptly. This amendment, as it stands, is quite adequate but I would make the plea that the reports appear promptly during each year.

Amendment agreed to.

Section 5, as amended, agree to.

Title agreed to.

Bill reported with amendments.

Agreed to take remaining Stages today.

Bill received for final consideration.

Question proposed: "That the Bill do now pass."

Mr. Russell

I should like to make a brief comment. In regard to most of the legislation which will be coming from the EEC institutions, it will be mandatory on our Government to incorporate it into the laws of this State. Is there any method by which the Houses of the Oireachtas could have an opportunity of discussing the draft legislation before it is discussed in the institutions of the European Economic Community? Could we have an opportunity of seeing these laws in draft form before they are enacted by the Council? I think the procedure is that they come from the Commission to the Council. Could we be afforded an opportunity of discussing them and possibly suggesting improvements or amendments before they become the laws of the European Economic Community?

Dr. Hillery

Most of the material coming through would have to do with the common agricultural policy. A proposal having been initiated, it would be sent to the Council. The Council would then make a decision. The Council decision-making at present, even though there is theoretically weighted voting, holds to an agreement that nothing is done against the vital interests of any country. This strengthens the position of small countries such as ours. There would be one representative from each country on the Council of Ministers.

The scrutiny of the draft would be done by the European Parliament. It would appear in the Journal Officiel and would go on to the Social and Economic Committee. We have decided to have it available in the Library here. I hope the committee we are trying to establish will see clearly where they can be useful and not proceed on things which they will not be empowered to do. Such a committee could very easily single out significant draft legislation and bring it to the attention of both Houses so that there would be awareness of and discussion on it. In that way the Minister making the decision, the members of the European Parliament and the members of the Social and Economic Council of Europe, would know what would be desirable from the country's point of view. It could be effected in this way.

Question put and agreed to.