Committee Reports > List of Committees > Joint > 1976 > Committee on the Secondary Legislation of the European Communities > Report No. 49 - Statutory Instruments [15] made under the European Communities Act 1972 and Food Standards Act 1974

REPORT

1. Introduction

Since it last reported on statutory instruments in its fortieth report (Prl. 5596) of 30th June, 1976 the Joint Committee has examined a further fourteen instruments. These are listed in Appendix 1 to this report. One of them, [S.I. No. 155 of 1976] was made under the Food Standards Act, 1974 and the others under the European Communities Act, 1972.

In this report the Joint Committee wishes to comment on five of the instruments. It also desires to refer to the European Communities (Detergents) (No. 2) Regulations, 1975 [S.I. No. 107 of 1975] which it has already dealt with in an earlier report.

2. European Communities (Calibration of Tanks of Vessels) Regulations, 1976 [S.I. No. 110 of 1976] and European Communities (Standard Mass per Storage Volume of Grain) Regulations, 1976 [S.I. No. 111 of 1976].

Both of these instruments involve the carrying out of services by an inspector to ensure compliance with EEC Directives of certain measuring instruments in the case of one instrument, and of the calibration of certain tanks in the case of the other. For these services fees may be charged and each instrument provides that the fee shall be “such fee as the Minister for Industry and Commerce, with the consent of the Minister for Finance, determines”.

The Joint Committee has already, in the case of an earlier instrument, objected to a provision leaving the amount of fees to the discretion of Ministers. In its twelfth report of 2nd July, 1975 (Prl. 4670) it stated—

“The Joint Committee regards this provision as an unreasonable use of the legislative power delegated to the Minister. It is not satisfied that the amount of charges on the public originating in subordinate legislation under the Act of 1972 should be variable at the discretion of Ministers. If fees are to be imposed in such instruments the amounts should be specified so that the Houses acting on the recommendation of this Committee can annul the instruments if dissatisfied with the charges”.

The comments of the Department of Industry and Commerce on the provisions now under consideration are contained in a letter which is reproduced in Appendix 2 to this report. The Department intimates that it is proposed to include in a new Weights and Measures Bill a method of calculating metrological fees. At this stage it is not, apparently, possible to determine appropriate fees for the services now being provided for and it may be that no fees at all will be charged in the interim period.

The Joint Committee has no reason to change the views it expressed in its twelfth report. In the present case it considers that if the necessity for charging fees arises before the proposed Bill becomes law, amending regulations should be made specifying what those fees should be. It is not satisfied that any fees at all should be charged on foot of the provisions in the two instruments as they stand.

3. European Communities (State Financial Transactions) Regulations, 1976 [S.I. No. 121 of 1976].

This instrument made by the Minister for Finance on 8th June, 1976 under the European Communities Act, 1972 purports to authorise him to enter into contracts of guarantee and loan contracts necessitated by membership of the European Communities.

Contrary to the recommendation made by the Joint Committee in its thirtieth report (Prl. 5419) of 28th April, 1976, the instrument contains no reference to the Community legislation which it is implementing. The Department’s explanation of this omission is set out in Appendix 3 to this report.

It would appear from the Department’s letter that while the immediate purpose of the instrument is to give effect to Irish obligations under the Association Agreement with Turkey and the related Protocols and Internal Agreement, the instrument is intended to cover any future similar obligations that may arise. For this reason no reference either to the Treaties or any secondary legislation was thought appropriate.

However convenient it may be for Ministers, the Joint Committee does not accept that section 3 of the European Communities Act, 1972 can be used to make regulations to give effect to possible future obligations. Such regulations must only be used to give full effect to the treaties and acts of the institutions of the Communities referred to in section 2 of the Act. If the instrument now under consideration can be justified it must, therefore, be founded specifically on some piece of Community legislation.

It seems to the Joint Committee that Ireland’s financial obligations in connection with the Association Agreement with Turkey arise from the Internal Financial Agreement which was adopted on 30th June, 1973 although it has not yet entered into force. This Agreement was entered into by “the representatives of the Governments of the Member States of the European Communities meeting within the Council”. It does not, therefore, appear to be either an act of an institution of the Communities or being subsequent to 1st January, 1973 a treaty to which section 2 of the Act of 1972 applies.

In the foregoing circumstances the Joint Committee concludes that the instrument constitutes an unwarranted use of the statutory powers conferred on the Minister and that the desired powers should have been sought in a Bill. It recommends that the instrument be repealed and an appropriate provision included in the next Finance Bill.

4. European Communities (Statistical Surveys) Regulations, 1976 [S.I. No. 223 of 1976].

This instrument provides that a person who contravenes certain Council Regulations dealing with statistical surveys shall be liable on summary conviction to a fine of up to £500 or, at the discretion of the court, to 6 months imprisonment or to both the fine and the imprisonment.

In its thirtieth report (Prl. 5419) of the 28th April, 1976 the Joint Committee gave its grounds for thinking that a fine of £500 may be too much for a summary offence. It has asked the Department of the Taoiseach to comment on S.I. No. 223 of 1976 in the light of that report. The Department has asked the Attorney General for his opinion and when that is available, the Joint Committee will make a further report on the matter.

5. European Communities (Non-Life Insurance) Regulations, 1976 [S.I. No. 115 of 1976].

The Joint Committee is pleased to note that this lengthy instrument has been for the most part drafted so as to make it comprehensible in itself without the necessity to have recourse to the parent Directive. It would have been even better, however, if Regulation 3 (1) had specified the kind of insurance excluded from the provisions of the instrument instead of merely referring to the pertinent articles of the Directive by number.

This statutory instrument effects important changes in insurance law and amends provisions of the Insurance Acts, 1909 to 1971. Further amendments of these Acts will be necessary when other Directives dealing with insurance have been adopted. Although the Joint Committee accepts that such Directives may, initially, be implemented by statutory instrument, it considers that in due course all the amendments should be incorporated in a new Insurance Act, preferably a consolidation statute containing all statutory law pertaining to insurance.

The present regulations also provide for a maximum fine of £500 for any contravention of its provisions. As already indicated the Joint Committee proposes to make a further report on such fines when the views of the Attorney General are made known.

6. European Communities (Detergents) (No. 2) Regulations, 1975 [S.I. No. 107 of 1975].

The Joint Committee dealt with this instrument in its twenty-second report (Prl. 5141) of 11th December, 1975. In that report it criticised the instrument for creating two offences where one seemed sufficient and for making the second offence depend on a determination by the Commission. Since then it has received from the Department of Industry and Commerce the letter of 31 Lúnasa, 1976 of which a copy appears in Appendix 4. It is clear from this letter that the Joint Committee’s criticism was well founded and it is pleased to note that the regulations are being amended.

(Signed) CHARLES J. HAUGHEY,

Chairman of the Joint Committee.

9th December, 1976.