Committee Reports > List of Committees > Joint > 1976 > Committee on the Secondary Legislation of the European Communities > Report No. 30 - Secondary Legislation, Implementation by Statutory Instruments

REPORT

1. Introduction

Since it issued its twenty-second report on 11th December, 1975, the Joint Committee has examined a further eleven statutory instruments which implement secondary legislation of the European Communities. These are listed in Appendix I to this report. Two of the instruments [S.I. Nos. 118 and 180 of 1975] were made under the authority of the Food Standards Act, 1974 and a third under powers delegated by the Imposition of Duties Act, 1957 and the Finance Act, 1962. The remaining eight instruments are regulations made under section 3 of the European Communities Act, 1972.

Arising out of its examination of these and other instruments and of various Acts of the institutions of the Communities, the Joint Committee has some general observations to make on the implementation in Irish law of the secondary legislation of the Communities.

2. Implementation of Directives

In its eleventh report the Joint Committee drew attention to the concept of direct applicability of Community secondary legislation and pointed out that where such legislation is not directly applicable, it cannot give rise to individual rights and obligations in Irish municipal law without the enactment of domestic implementing legislation. In the case of a scheme initiated by a Council Directive which is not directly applicable, as is usually the case, the question arises as to what domestic legislation is sufficient if the scheme is financed partly from Community and partly from national funds. The Joint Committee doubts if Members of the Oireachtas appreciate that if the Houses, by passing the annual Appropriation Bill, appropriate money to a particular scheme which is not founded on other legislation, they are deemed to be giving the Minister concerned carte blanche to administer the scheme as he sees fit. Nevertheless, this seems to be the effect of a Supreme Court decision [Latchford and Sons Ltd. v. Minister for Industry and Commerce (1950) IR 33]. Although it is not at all clear to the Joint Committee that this decision is applicable to schemes financed partly from Community and partly from national resources, it may be that a different view is held in some Government Departments. In this connection the Joint Committee notes that the Disadvantaged Areas Scheme, which gave rise to its consideration of this matter in the first instance, is being administered without any legislative authority save whatever is afforded by the Appropriation Act, 1975.

The Joint Committee believes that the Houses in setting up the Joint Committee considered that they were establishing machinery to monitor Community secondary legislation at all stages from its inception as a proposal to its final implementation in Irish law. In particular, it is of opinion that the Houses intended to control the detailed application of Community secondary legislation in so far as it requires domestic law to give it full effect. In the Joint Committee’s view this objective is frustrated when the terms of schemes such as the Disadvantaged Areas Scheme are embodied neither in a statutory instrument, which is subject to the scrutiny of the Joint Committee, nor in a Bill, which can be considered by the Houses themselves.

3. Consistency in Implementing Instruments

This country has now had over three years’ experience in implementing Community secondary legislation by domestic statutory instruments. It might have been expected therefore that a uniform approach would have been evolved by now in dealing with the various problems which this exercise entails. The Joint Committee is not satisfied that this is the case.

As indicated in previous reports, the Joint Committee’s view is that statutory instruments implementing Community secondary legislation should as far as possible be comprehensible in themselves and that it should not be necessary in most cases at least to consult the original secondary legislation in order to comprehend the purport of the domestic instrument. In its twelfth report of 2nd July, 1975 (par. 13) the Joint Committee drew attention to S.I. No. 62 of 1975 which in its view meets this requirement fully. It is not satisfied, however, that efforts to maintain this standard generally are adequate. In its twenty-second report of 11th December, 1975 (par. 7) the Joint Committee drew attention to two instruments dealing with allied subjects. In the earlier one made in 1973 the provisions of the relevant Community Directive were reproduced in an appendix while the second one made in 1975 consisted merely of legislation by reference to the titles of the relevant Community Acts.

Another instance of lack of consistency has been observed in statutory instruments implementing Directives which provide that products may only be “placed on the market” under specified conditions. It seems to the Joint Committee that draftsmen are not agreed as to whether the Directive phraseology should be reproduced in the domestic instrument or whether language more commonly employed in domestic legislation should be used or whether any explanatory definition is required if the language of the Directive is adhered to. For example S.I. No. 102 of 1975 was intended to implement Directive 73/404/EEC which requires Member States to prohibit “placing on the maket” detergents which do not conform to certain conditions. The statutory instrument provided that “a person shall not sell or offer for sale” a product which did not comply with those conditions. This instrument was then repealed and replaced by S.I. No. 107 of 1975 in which the phrase “shall not place on the market” is used instead of “shall not sell or offer for sale”. Again, as will be seen from the correspondence reproduced in Appendix 2 to this report, it is now apparently considered necessary, or at least desirable, to include a definition of “market” in instruments implementing Council Directives regarding seeds. No such definition, however, appears in other statutory instruments implementing Council Directives dealing with the marketing of other products, e.g. S.I. No. 187 of 1974 and S.I. No. 301 of 1975.

No doubt drafting problems of the type referred to in the preceding paragraphs are difficult to resolve in the absence of judicial interpretation but the lack of a consistent approach is confusing. The Joint Committee considers that this matter should be examined to see if it is possible to agree upon a uniform and consistent approach.

4. Citation of Authority

The Joint Committee has observed that in some cases there is no reference either in the statutory instrument or in the accompanying explanatory note to Community secondary legislation which the instrument is purporting to implement, e.g. S.I. Nos. 111, 115 and 323 of 1975. The Joint Committee regards such omissions as objectionable and particularly so in the case of regulations made under section 3 of the European Communities Act, 1972 which depend for their validity on their being based on Community secondary legislation.

The Joint Committee considers that the relevant secondary legislation should be apparent from a perusal of the domestic instrument. If the pertinent secondary legislation is not indicated in the substantive part of the text, an appropriate reference should be included in the introductory citation of authority. Moreover, the Joint Committee considers that the purport of the secondary legislation being implemented should be summarised briefly in the accompanying explanatory note.

5. Unusual Use of Power

The power to make regulations delegated to Ministers under section 3 of the European Communities Act, 1972 is extremely wide. It includes, for example, the power to repeal or amend statutes. However, it may only be exercised to give “full effect” to an Act of a Community institution though regulations may include “incidental, supplementary and consequential provisions”. The Joint Committee finds it necessary to draw special attention to this requirement because it has noticed some provisions in regulations which seem to go beyond what is strictly required by the relevant Community acts. In its twenty-second report it drew attention to a provision in S.I. No. 67 of 1973 which purported to implement a Community provision before it was adopted by the Council of Ministers. It has since observed that S.I. No. 129 of 1973 and S.I. No. 176 of 1975 have provisions dealing with the export of fresh poultry meat to third countries although this does not appear to arise from the Council Directive which the instruments purport to implement.

The Joint Committee considers that the greatest care should be exercised to ensure that regulations under the European Communities Act, 1972 include nothing that is not strictly warranted by the relevant Act of the Community institutions. It would regard itself as entitled in principle to recommend the annulment of any statutory instrument which offends in this respect.

6. Offences and Penalties

The implementation of Community secondary legislation necessarily involves prohibiting persons from acting in contravention of such legislation and providing penalties if they arc convicted of doing so. The Joint Committee pays particular attention to these provisions.

In the first place the Joint Committee is concerned to ensure that the dimensions of any offence created are perfectly clear. Because it contained a provision which was defective in this respect, the Joint Committee drew attention to S.I. No. 107 of 1975 in its twenty-second report. Secondly, the Joint Committee expects that the consequence of failure to observe a particular requirement will be clear to those concerned. For deficiencies in this respect it cited S.I. No. 62 of 1975 in its twelfth report and S.I. No. 107 of 1975 in its twenty-second report.

Finally, the Joint Committee examines the penalties provided to see if they are reasonable in the circumstances and are appropriate to summary offences to the creation of which regulations under the European Communities Act, 1972 are confined. In its twenty-second report the Joint Committee expressed doubts as to whether a maximum fine of £500 as provided for in S.I. No. 160 of 1975 was not excessive for a summary offence. It has the same doubts about a similar penalty imposed by the European Communities (Cattle Export Charges) Regulations, 1975 [S.I. No. 259 of 1975]. It would appear from a decision of the Supreme Court given in February, 1961 that a £100 fine was then regarded as about the limit that could be imposed without removing an offence from the minor category. The Joint Committee is informed that £1 in February, 1961, had an equivalent purchasing power to £3-23 in February, 1976.

The implementation of Council Directives dealing with the approximation of national laws involves for each Member State the enactment of domestic legislation to ensure that the provisions of the Directive are observed in its own territory. The Joint Committee doubts that to secure the purposes of such a Directive, it would ever be necessary for one Member State to make it an offence for persons subject to its jurisdiction to infringe the implementing legislation of another Member State. Nevertheless, Regulation 5 of the Food Standards (Certain Sugars) (European Communities) Regulations, 1975 [S.I. No. 118 of 1975] purports to do just that. It provides that certain products “may not be exported to any member state of the European Economic Community for human consumption unless they comply with the Directive as applied in that state”. The Joint Committee regards this provision as undesirable because it makes an offence in this country depend on proof of foreign law, and as unnecessary because an exporter cannot succeed in his purpose unless he complies with the law of the importing state. It is not satisfied with the explanation which it has received from the Department of Agriculture and Fisheries and which is reproduced in Appendix 3 to this report. In particular, it does not accept that the need “to inform any person intending to export sugar of the need to take account of the manner in which the Directive is applied in other Member States” necessitates the creation of a statutory offence.

(Signed) CHARLES J. HAUGHEY,

Chairman of the Joint Committee.

28th April, 1976.