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Seanad Select Committee on Scrutiny of Draft EU-related Statutory Instruments díospóireacht -
Tuesday, 21 Nov 2023

Consideration of Draft EU-related Statutory Instruments

I welcome the Minister of State, Deputy Peter Burke, and his officials. As people will know, this committee was established to scrutinise directives from Europe being transposed into Irish law. Over the summer, the relevant Departments have prepared information notes on these statutory instruments.

I remind members and those watching of this committee's role, which is, as I said, to scrutinise draft EU-related statutory instruments. It has been described as in many ways being a filter committee, one that establishes in the first instance whether it is necessary to refer pending EU-related statutory instruments to sectoral committees for further scrutiny. As part of the process, the Minister and-or the Minister of State appear periodically before the committee to present the proposals at a high level. We do not expect the Minister of State to know every single detail of every proposed statutory instrument or information note being presented.

Before we begin, I will read the note on privilege. I remind members of the long-standing parliamentary practice to the effect they should not comment on, criticise or make charges against a person outside of the Houses or an official either by name or in such a way as to make him or her identifiable. I invite the Minister of State to give us his opening statement.

I thank the Cathaoirleach. I begin by welcoming the increase in representation for the European Parliament on foot of yesterday's announcement that Ireland's representation would go from 13 seats to 14 seats, with the Midlands-North West getting this additional seat. This will be a big asset to our country in the years ahead.

I am pleased to attend today’s meeting. I am joined by officials from the EU division of the Department of Foreign Affairs, Tim Harrington, director, institutions and co-ordination unit, and Stephen Ryan, deputy director. I found the outcome of the last invitation to meet with the committee, on 4 July, to be useful as an introduction to the important work it undertakes, namely, the scrutiny of the transposition of EU directives across Departments. I understand that today’s agenda is to primarily cover directives adopted between June 2022 and May 2023. I understand the committee may also wish to receive an update on the recent European Court of Justice judgement on the habitats directive.

Following the committee’s request, information notes have been provided by seven Departments on the 15 directives agreed under the co-decision process by the Council and the European Parliament and which were published between June 2022 and May of this year. The majority of EU directives have a two-year transposition deadline. The 15 directives in question will therefore be transposed into Irish law on various dates over the next two years or so, with the majority having a deadline in Autumn 2024.

I am happy to see that already three of these directives have been transposed. The relevant statutory instruments, along with information notes, have been provided to the committee. The three directives in question are: EU Directive 2022/1999 on the transport of dangerous goods by road; EU Directive 2022/2561 on the qualifications and periodic training of drivers of certain road vehicles for the carriage of goods or passengers; and EU Directive 2022/993 on the minimum level of training for seafarers.

In line with procedures, the statutory instruments concerned were laid before the Houses of the Oireachtas by the Department of Transport and the Department of Enterprise Trade and Employment respectively. I have been informed by the Department of the Environment, Climate and Communications that Directive 2022/2555 on cybersecurity will be transposed by primary legislation. As such, it falls outside the remit of this committee.

I turn now to deal in detail with the remaining 11 directives. Three of these, all under the responsibility of the Department of the Environment, Climate and Communications, are due to be transposed by the end of this year. These are Directive 2023/959 concerning greenhouse gas emissions allowance trading within the Union; Directive 2022/958 concerning emission reduction targets in the aviation sector; and Directive 2022/2380 regarding radio equipment or, essentially, standardisation of phone and tablet chargers. I am happy to see that the Department has already provided the draft statutory instruments intended to transpose these three directives to the committee. I hope that these, along with the information notes provided, have been of help to the committee in forming a view on the intended means of transposition in these three areas.

The remaining directives are due, in the main, to be transposed from summer 2024 onwards. The five Departments responsible - enterprise, equality, finance, justice and transport - have provided information notes and have indicated that they will provide draft statutory instruments to the committee at the earliest possible opportunity. At least one may be provided in the coming weeks, with the others following in the new year. I am pleased at the responsiveness of the Departments concerned and that information notes and draft statutory instruments have been provided in a timely manner, or that a commitment has been made to deliver same well in advance of transposition deadlines.

We can discuss the directives concerned in more detail later in the meeting, as the committee wishes, but I would note the benefits which will flow for citizens, businesses and all of society as these come into effect. The directive on the harmonisation of radio equipment, which will see a uniform charger being introduced for all types of mobile phones and tablets, is but one of these.

As part of my role as the Minister of State with responsibility for European affairs, I chair the interdepartmental committee on EU engagement. This consists of senior officials from across Government Departments, as well as from the Office of the Attorney General and the Office of the Parliamentary Counsel. This generally meets on a quarterly basis, most recently on 4 October last, and will meet again in early December. Its standing agenda includes reviewing Ireland’s performance in transposing EU directives. This is measured by the European Commission across all member states under the Single Market scoreboard. This measures the transposition of EU directives on a bi-annual basis, at end-May and end-November each year, which are termed the summer and winter Single Market scoreboards. The target set by the European Commission is that a member state should have not more than five directives outstanding to be transposed at each six-monthly deadline. The expectation is that most of these, if not all, would then be transposed in the following six months, and this generally occurs.

For the coming winter scoreboard, I am happy that only two new directives are awaiting transposition and they have deadlines between 1 June and 31 November this year. These concern the Trans-European Transport Network and vehicle hire. I understand the Department of Transport is actively working on closing off these two directives as soon as possible.

I mention this because it is the Government’s firm resolve to continue to improve the transposition of EU directives. The aim is that all directives due for transposition should be completed before the next Irish Presidency of the EU on 1 July 2026. I should add that Ireland achieved a zero transposition score before our previous EU Presidency in 2013, one of the handful of member states ever to achieve this, before or since. While member states certainly aim to get all EU directives transposed on time, there are usually a few directives which cannot be completed by the bi-annual deadlines. Nevertheless, I have given Departments the aim, for Presidency 2026, of improving our transposition rate so we replicate the zero score again at that time. In the interim, the aim will be, wherever possible, to at least match the European Commission’s target of not more than five directives being late for any scoreboard. For the winter 2023 scoreboard, we have already bettered this, with only two cases outstanding.

I should also refer to the committee’s request sent to departmental Secretaries General on 3 October last seeking details of various elements of transposition. I hope that, by now, most, if not all, Departments have responded. If there is any remaining, my office will be happy to reach out to those Departments. I hope the committee will find these returns helpful in building an appreciation of the demands on Departments generally in transposing EU directives and that, for the most part, these are achieved on time. Should the committee wish to receive a brief update on the habitats court case, I am happy to provide this.

In conclusion, I look forward to our discussions this afternoon. I hope the detail which I have provided in my opening remarks and will provide in our following discussions will confirm to the committee the effort and priority which is being given to transposition of EU directives across Departments, and the importance which I attach to this in my role as Minister of State with responsibility for European affairs.

I thank the Minister of State for his opening statement. I will open the floor to members. I call Senator Blaney.

I welcome the Minister of State and thank him for his detailed opening statement. One of my main reasons for coming here today was not to ask the Minister of State about the content of his speech but to raise a number of queries I have received in the last 24 to 36 hours regarding proposals for people over the age of 70 to have to re-sit their driving test or have training in regard to their licence. I know it is not related to today's business but I wonder if the Minister of State has any remarks to make or thoughts about the issue. Personally, I think it is deplorable for any such proposal to come in front of Parliament and for people who have spent their lives with a driving licence to have to undertake such measures to continue driving. For me, 70 is the new 60. I think we have created a lot of anxiety in a very short time in this regard. If it is not on the Minister of State's desk at this stage, and I know I have just thrown this at him, it is something the Government needs to respond to sooner rather than later. The quicker we respond, the better.

I am not sure if that is within the remit of the committee but I will certainly afford the Minister of State the opportunity to comment if he so wishes.

I thank the Senator. This proposal from the Commission is at a very early stage and has not entered the trilogue process yet. Members will be very aware, in the European context, how much proposals change from beginning to end. One recent example is the nature restoration directive and how much it has changed through political intervention and work to ensure it is a sustainable proposal and does not in any way pressure farmers up and down this country in terms of a mandatory call to re-wet land. It will now have a more encouraging role, where a state can play a bigger part on its own land. The point I am trying to make is that, essentially, this is a very early-stage proposal from the Commission and it has not yet gone into trilogue with the Council and the European Parliament. I have no doubt the Government will have firm views on it as well.

I thank the Minister of State for those remarks. I ask him to use his office and powers to do whatever he can to oppose what, to me, is a ludicrous proposal. It is completely unnecessary to try to fix something that is not broken. Our system works perfectly well. We have many issues with regard to deaths on our roads in the west, but this is not the area of responsibility that is causing the problem.

While it is outside the remit of the committee, we may be in a position to write formally and express those views if they were the views of the committee.

That would be very helpful. I propose that.

That is fine. The clerk will do that in due course. Senator Sherlock is next.

I thank the Minister of State and all the officials here today. I want to ask first about the transposition of directives. The Minister of State talked about two directives that were due to be transposed this year being outstanding. What is the number for the other overdue directives? I am sorry, I am clumsy in asking the question. What is the total number of overdue directives?

Seven, I think. I will double check. Yes, I am told it is seven in total.

Okay. It was 12 last December and it is seven now, is what you are saying.

Yes. We are making progress. That is why the committee is set up, to really encourage that we get down to zero, the departmental committee.

We will not necessarily talk about the committee because I think it is about the statutory instruments in particular. Certainly the ambition to have a zero rate for overdue transpositions would be very welcome. I want to ask about last Friday. The European Commission issued a communication about the directive on work-life balance. That is now 15 months overdue. Can the Minister of State talk me through the process? How many times does the Commission have to tell a member state it is late? We saw last Friday that we are being referred to the ECJ. Can you talk me through the process? I am a bit worried that there is money that the Irish State is going to have to fork out because it has not got its act together. There is bureaucratic time as well being spent not commencing a Bill that is on our Statute Book for the past eight months.

I have a speaking note here which I will read in relation to the work-life directive. Committee members will be aware that I have no responsibility for all these directives so I just have not the in-depth knowledge that is required on them.

I appreciate that.

I will read the speaking note from the Department. Ireland along with Belgium and Spain were referred to the Court of Justice in November 2023 due to incomplete transposition of the work-life balance directive. This includes a number of important entitlements for parents and carers to support them to balance their working and caring responsibilities. These include an entitlement of two weeks' paternity leave under Article 4; nine weeks' paid parental leave under Article 5; a provision that each parent should have short-term leave for caring purposes under Article 6; force majeure leave under Article 7; and the right to request flexible working under Article 9. Only the provision related to the flexible working under Article 9 remains fully to be transposed. As paternity leave and force majeure had already been available in Ireland there were no transposition steps to be taken. The Parent's Leave and Benefit Act 2019 introduced two weeks' paid parental leave in line with Article 5. This has been extended now to seven weeks for each parent of a child under two----

I am sorry, I do not want to interrupt. I know the detail of the directive. As you said, you do not have oversight over the detail of the Bill. What you are in charge of is the transposition of the entirety of the directive.

I am not in charge of transposition, sorry, just to correct you.

As Minister of State with responsibility for European affairs I presume----

If you have a target of zero----

It is my job to bring Departments together and encourage them to ensure they meet their deadlines. It is not my responsibility. That is up to each line Minister. It is their responsibility. Let us be very clear in terms of what I am being put with here.

Okay, but my direct question was about the process.

If you would let me finish reading the note, it addresses it.

If committee members would have a little bit of patience it would be great. The Work Life Balance and Miscellaneous Provisions Act 2023 introduced five days' leave for medical care purposes to meet the requirements under Article 6 of the directive. Under Part 4 of the 2023 Act, the code of practice on the right to request flexible working and remote working is being prepared by the Workplace Relations Commission, which will allow for the introduction of the right to request flexible working. The Commission has been informed of significant progress on the transposition of the directive and of our intention to complete the final element requiring transposition at the earliest possible opportunity. The Department of Children, Equality, Disability, Integration and Youth is now working to address this issue as a matter of urgency. The necessary legislation will be expected to be in place before the case would reach the Court of Justice as this may bring about early closure to this issue.

Maybe your officials might be better placed to answer this. When is it is expected that this case would go to the ECJ?

Maybe six months or more.

As Minister of State are you concerned that there a referral to the ECJ? What actions are you taking to ensure that we are not waiting around for six months until the case is taken and to ensure that the final piece of that Bill is commenced?

Any case would concern me and that is why it is very important that Departments take action to rectify this. It is not unknown to have infringements in this regard. Many European states have them. It is about how we rectify them in a timely manner before they reach the court, and we will do just that.

I have a final question. I am sure my colleague, Senator Daly, will have much more detailed questions to ask. The actual purpose of this committee is the notification to the committee of the draft statutory instruments. I want to ask about the delivery. The Minister of State talked about a target of 2026 and spoke with pride about Ireland's last Presidency and the transposition deadlines. Are there targets set by yourself to Government Departments for providing this committee with the draft statutory instruments? What is your correspondence with other Departments? Have you more detail well in advance of transposition detail as you have stated here?

It is to get them as early as possible. Judging by the evidence, the committee has three directives before it at the moment if I am not mistaken. I think you have them for six or seven weeks at this juncture. The other directives that are outstanding are not due until the second half of 2024. On the evidence since the inception of this committee, I think that would be deemed reasonable.

I just wanted to clarify. We had this discussion the last time and there was a lot of back and forth between officials. The overall purpose of the committee is to have the statutory instruments. Are we now saying that there is a commitment to give us the draft statutory instrument? I know it says in a timely manner, but we will be getting the draft statutory instruments?

We have asked all Departments to do that. I cannot assure members about what will or will not happen because I cannot control it. We have requested all Departments to do that. What I will say to you is to judge the evidence. You have three before you now for six or seven weeks.

Okay. That is a fair point. On the contribution made, there were three directives which your note informs us were laid before the Houses by the Oireachtas in line with procedure. That is not the new procedure. The new procedure is that the draft statutory instruments should have been sent to this committee and then sent on to the sectoral committees. Then it is up to them what to do with them, whether they engage with the relevant Department or not. Then they are laid when they are signed by the relevant Minister. They were done during the time. I know we are in the early stages of this but it is not true to say it is in line with procedure that Ministers are signing statutory instruments without them being referred to this committee. Did we get a copy of those draft statutory instruments?

Are the ones you are referring to going back to 2014 and 2008?

I know that but what we are saying is that the three directives in question were transposed - is that this year?

They refer back and have been there for a significant period.

I know that. It does not matter how overdue they are. For the benefit of members of the public, the current rules of the House are that draft statutory instruments and draft legislation should be given to the democratically elected Members of both Houses through committee structures, which we pass on to them.

The committees did not get an opportunity-----

I am informed by the clerk that those statutory instruments were transposed before this committee commenced its work.

Were they not done this year?

The enterprise one was transposed back in April and one of the other statutory instruments that has been referred is actually going to be part of primary legislation. Our remit does not include any statutory instrument that would require primary legislation.

I know that would be the case but it is listed here among the three that were brought in. We might just-----

The overall point you are making is absolutely correct, which is that if a statutory instrument is being made available, it needs to be made available to this committee in the first instance, not laid before the Houses. Am I correct?

Yes, absolutely. Can I get clarification on something? I understand the Minister of State's point that we have the draft statutory instruments but they still have not been referred to the committees. This should be done as a matter of urgency. There is no set deadline or timeline as to when statutory instruments will come to us from Government Departments. I know we are at the early stages of the process with this committee in terms of working it out but the sooner we get a statutory instrument the better, given the tight deadline in relation to the transposition. Some of those statutory instruments are going to be signed in the next week or two but they still have not been given to the relevant sectoral committees. That is what we are going to be doing today.

They are with the committees.

Have they gone to the committees?

Yes, I understand they have.

This is very confusing. The committee seems to have a lot of work that it is not doing, from my perspective. It has had three statutory instruments with it for six or seven weeks. Has the committee made a determination on them yet? We do not have much parliamentary time between now and Christmas.

I agree with the Minister of State but my understanding was that those draft statutory instruments would come here first and would not go directly to the sectoral committees.

That is something that needs to be clarified because my understanding is that they were coming here and to the sectoral committees as well. They should be coming here in the first instance.

Should they not be with the sectoral committees now?

We were supposed to refer them to the sectoral committees. They were not supposed to go directly to them.

They are with this committee now-----

Yes, but they are not with the sectoral committee.

No, they are with this committee.

That is grand but what I am saying to the Chair is that when they come in, a meeting of this committee should be called in order to get them referred on in a timely manner, given the tight timelines.

That is a reasonable point.

We will tease this out in our processes but I am concerned about the statutory instrument relating to emissions reductions targets for the aviation sector. Was there lobbying in relation to that? Clearly that is a sector that would be concerned about lobbying because there would be financial implications for the airline industry here. We also have a large number of aircraft leasing companies here as well. If there was lobbying, that should be on the public record. My concern is that for the last number of decades, lobbyists all have sight of these directives and are tracking them all the way through. They are making their points and putting forward the case for their people while the public and, in many cases, politicians are not aware that these things are coming down the pipeline. It is only when something gets laid before the Houses that it comes into our consciousness. When we are discussing those statutory instruments, we might be able to get clarification of that. We can also send it on to the sectoral committee and advise it to ask questions as to whether meetings were held and in terms of the register of lobbyists, who made representations in relation to a statutory instrument. I am drawing particular attention to the one relating to the aviation sector. The greenhouse emissions trading allowance system is very complicated stuff but the important issue is transparency. One of the roles of this committee should be to ensure that draft legislation would go up online and a press release would go out from the Chair saying that certain items were considered and are being sent forward to the relevant sectoral committees.

In relation to the ones that are outstanding, are any fines likely to be imposed as a result of late transposition? On the issue of process again, there are outstanding ones from 1 June to November of this year relating to two directives awaiting transposition. One relates to the trans-European transport network and vehicle hire, which is something of great concern to people in Kerry and the tourism industry generally. My concern is that because we are still in a transition phase from the old system, the draft statutory instrument will be put before the Minister, who will be told that it is late and needs to be signed, and it will not come to this committee or the sectoral committee. No one will see it before it is signed.

I do not want to burden the Minister's officials but we should write to the relevant Government Departments and ask them to send on draft statutory instruments when they are available so that we can send them on to the relevant committees. We should give the Departments a copy of our terms of reference and -----

Departments are aware of the establishment of this committee.

Yes, but the rules have changed. The rules are that the statutory instrument should come to us. It does not matter how old the directive is-----

I agree that a letter of clarity should be sent. We are beginning to get co-operation from some Departments but----

On that point, how many Departments have engaged? I noted some have but they have not all replied.

I will have to check. We are still waiting for replies from some Departments.

We are happy to follow up with any Department, if needed.

We have asked them all but it seems we have only received a reply from eight or nine Departments. One more may have come in today. Sorry, there are eight Departments left. That is not really acceptable.

No, that is not acceptable. Can we ask them to come back to us? I thank the Minister of State for his commitment regarding the replies. There are some-----

Just to clarify, a couple of the outstanding Departments do not deal with EU scrutiny, so the number is probably smaller. That said, they should write to us and point that out.

I note that some of them did write and say that they have not transposed a directive yet. There are some that are very important and worth noting. I suggest the Chairman send out a press release on the work of this committee. An EU directive published in May 2023 which is not due to be transposed until July 2026 relates to the application of equal pay for equal work between men and women. I know that primary legislation is being worked on in relation to that directive and it is to be confirmed whether this will involve a statutory instrument or just primary legislation. The other one is the EU directive on gender balance among directors and a listing of companies. That is listed for December 2024 and again, whether it is relevant to this committee needs to be clarified. It should be pointed out that this committee will be looking at these matters if draft statutory instruments come our way. A draft statutory instrument coming to a committee with three-----

It would be my view that even if it does require primary legislation and is deemed to be outside our remit, we should still be provided with information notes on it.

Yes, absolutely but we are working out the process on this. These are things that affect people every day. In the case of a statutory instrument, the old process was very much lacking in transparency, as the Minister of State will appreciate. People used to wake up, years down the line, and ask how something became law. All we are trying to do, in terms of democratic oversight, is to give statutory instruments to the relevant sectoral committees and to highlight them by way of the Chair of this committee and the Department saying that they are up for consideration. The old system of adopting and taking on board EU legislation was the equivalent of the Oireachtas being told that the Government was going to bring in some legislation on agriculture. Members would be given the broad principles of that legislation and would discuss them and then the Minister would get the very detailed legislation a year or two later and would sign it into law. That is what we have been doing with EU legislation for years. We did it that way because there was no political benefit in scrutinising legislation per se. People generally do not get involved in the nuts and bolts but the problem is that the nuts and bolts are what affect people on the ground years down the line.

I thank the Minister of State for clarifying that. I know we are going to be discussing those Bills in private session. It is the equivalent of Second Stage of legislation because we are discussing the general principles but this goes to the sectoral committee. In future those discussions should be held in public because we are discussing legislation.

I would be of the same view. If we are doing a deep dive, it should be in public session. I would also be of the view that when a statutory instrument is referred, we should meet without delay. That does not take away from the fact that even if the statutory instruments came five or six weeks ago, it is still too short a timeframe when trying to do the job correctly and properly. Does the Minister of State have any concluding comments?

I thank the committee for its time. We will work proactively with it and its member to ensure they get those directives at an appropriate time. I always preface that by saying that this is me trying to work with Departments. I do not have the power to demand they do that but we will work hard to ensure they meet those targets. We will also follow up on what the Senator said about Departments. I think it was said there were ten. There are 18 Departments in total so a few of those Departments do not do statutory instruments. We will write to the ones that have not replied and tell them to get on with it.

I thank the Minister of State and his officials for attending. I know it was difficult because his commitments in Europe create timetabling challenges but it was important that we have this meeting.

The select committee went into private session at 3.42 p.m. and adjourned at 4.27 p.m. sine die.
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