Committee Reports > List of Committees > Joint > 1977 > Committee on the Secondary Legislation of the European Communities > Report No. 55 - Joint Committee on Secondary Legislation of the European Communities, Functions and Work

REPORT

1. Object of Review

The present Joint Committee will come to an end on the dissolution of the present Dáil. Presumably the question of reconstituting a similar type of committee will come before the Houses for consideration after the next general election. To assist the Houses in these deliberations the Joint Committee wishes to place on record at this stage its own assessment of its functions and performance.

2. Work of the Joint Committee

The duty imposed on the Joint Committee by the Houses in July, 1973 was that of selecting for examination proposals for Community secondary legislation, acts of the Community institutions and revelant domestic statutory instruments and making reports on them to the Houses. A standing specialised Committee of this kind was an innovation in our parliamentary procedure, and in retrospect, it is perhaps not surprising that the initial teething troubles experienced by the Joint Committee proved difficult to overcome. In any event, because of various difficulties, it was well into 1975 before the Joint Committee was working to anything like a satisfactory routine of business. One of the areas of difficulty, for instance, centred on the question of what complement of staff should service the Committee and what back-up facilities and assistance should be made available to it by Government Departments. This particular difficulty has been solved since 1975 and arrangements are now reasonably satisfactory. Since these problems were solved the Joint Committee has been working reasonably smoothly. It operates through four sub-Committees which, meeting in private, examine proposals and instruments in the first instance, study memoranda received from Government Departments and outside bodies and interviews civil servants and representatives of interested organisations. On the basis of the sub-Committees’ deliberations, the Chairman of the Joint Committee, who also acts as Chairman of each sub-Committee, prepares draft reports which are considered by the Joint Committee meeting in public usually once a month while the Houses are sitting.

Members of the Joint Committee have found that its work has made considerable demands on their time. The nature of the work necessitates the study of a lot of documentation often on complicated material and entails for the Chairman, in particular, more or less continuous involvement with the affairs of the Committee. More meetings have been required than in the case of any other committee in the history of the State apart from the special investigation carried on by the Public Accounts Committee in 1971 and 1972. Since April 1975 the Joint Committee has met on 16 occasions and there have been 48 meetings of sub-Committees. Of the 54 reports which the Joint Committee has made to the Houses before this report, 50 were made in that period. While this represents in the Joint Committee’s view a reasonable effort to discharge its responsibilities, it must admit that there have been several Commission proposals falling within its terms of reference with which it has not been able to find time to deal.

3. Value of the Committee’s Work

In considering whether a second Committee should be set up it will be for the Houses to assess whether the reports of the Joint Committee have had a value commensurate with the considerable efforts its Members have put into producing them. None of the reports has been discussed in either House and it is, therefore, impossible for the Joint Committee itself to determine what value the reports have had for those for whom they are primarily intended. From the six monthly reports of the Minister for Foreign Affairs and other sources, it has learned that its reports have been taken into account in Government Departments and there is evidence that it has had an influence on the drafting of domestic statutory instruments.

The Joint Committee itself believes that any true assessment of its work can only be made in the light of two factors. Firstly, there is the process whereby laws are adopted at Community level. Secondly, there is the considerable impact which that law has on the life of the people.

Membership of the European Communities has entailed for the Oireachtas a diminution of its exclusive power to make laws to the extent that legislative power in respect of matters covered by the Treaties has been ceded to Community institutions. By and large the ultimate law making authority at Community level is the Council of Ministers which consists of representatives of the Governments of the Member States. The loss of national parliamentary control over legislation in the areas affected is not, in the Joint Committee’s view, balanced by the responsibility which Members of the Governments ultimately bear to their national Parliaments.

The Joint Committee doubts if the general public or even parliamentarians appreciate the extent to which Community law which governs activities in the fields of trade, industry, transport, agriculture and services, is continuously being incorporated into our legal system either directly or through the agency of statutory instruments made by Ministers. The process by which Community law is produced cannot, in the Joint Committee’s view, be described as democratic. In these circumstances it seems to the Joint Committee that our national Parliament must scrutinise Community proposals and legislation in the interests of the nation and that the only practical means it has of doing this is through a committee such as the one which serves it at present.

If this viewpoint is accepted, the Joint Committee believes that there are some steps which the Houses can take to enhance the value and effectiveness of the work of its successor. In particular, it considers that the work of the next committee should be linked by formal arrangement with the work of the Houses and, to facilitate this, it believes that the scope of the next committee’s terms of reference could be broadened with advantage.

4. Functions of Committee

Many of the Joint Committee’s reports are necessarily of a technical nature and the subject matter, though often of great importance to persons directly concerned, does not readily lend itself to a formal debate in the Houses. It may well be that the Joint Committee has become so enmeshed in detail that it does not present a picture of Community legislation in a proper political perspective.

If this is a valid criticism it is attributable to the Committee’s terms of reference which, in relation to Community proposals, confine it to examining formal proposals by the Commission for secondary legislation to be adopted by the Council. The Commission, however, also produces programmes and policy documents which are usually intended to serve as a basis for future legislation and which, because they deal with subjects in broad outline, could form an appropriate basis for the discussion of matters in principle. The Joint Committee considers that if the terms of reference of its successor were extended to include consideration of such documents, its reports might provide a better basis for the assessment of Community policy by the Houses. Accordingly, the Joint Committee recommends that the terms of reference as regards Community proposals should be amended to read as follows:-

“That a Joint Committee etc. be established to examine (i) such programmes and other proposals prepared by the Commission of the European Communities as a basis for possible legislative action and such drafts of regulations, directives, decisions, recommendations and opinions of the Council of Ministers proposed by the Commission ………as the Committee may select and to report thereon to both Houses of the Oireachtas”.

It will be noted that the suggested amendment does not propose dropping formal proposals for legislation. The Joint Committee is conscious of the fact that in making this recommendation it is seeking to create greater problems of selection for its successor than it itself encountered. Nevertheless, it believes that it is important that this power should be retained and that as many as possible of the formal proposals should continue to be examined.

The Joint Committee considers that the terms of reference insofar as they relate to acts of the institutions of the Communities and domestic statutory instruments do not require alteration.

5. Debates in Houses

Originally, statutory instruments made under the European Communities Act, 1972, implementing Community secondary legislation, ceased to have effect unless confirmed by Act of the Oireachtas within 6 months. The European Communities (Amendment) Act, 1973, which was passed when the Joint Committee was set up, altered that position and provided that such instruments would continue to have effect indefinitely unless annulled by both Houses on a recommendation of the Joint Committee. In effect, the Houses agreed to forego one opportunity of discussing Community legislation when the Joint Committee was established. No doubt, that aspect of the matter did not seem particularly important in August 1973 when it appeared that there would be ample opportunity for discussing Community legislation either on reports of the Joint Committee or on the six monthly reports of the Minister for Foreign Affairs. In the event no report of the Joint Committee has been debated. As for the Minister’s reports, the latest debates took place in the Dáil in July 1975 and in the Seanad in March 1976.

If the work of the next committee is to be effective, the Joint Committee believes that it is essential that a definite arrangement be made under which the Committee’s reports are debated in each House at regular intervals, and, in the Committee’s view, the minimum required is two such debates each year. The Joint Committee would see no objection to the debate taking in other Community matters, if the Houses so desired, but it does not believe that the debates should depend on the Government making time available as opportunity offers. The Joint Committee recommends that each House should make an order appointing a definite time for such debates. If thought desirable because of the pressure of other parliamentary business, there could be a limitation as to the time allowed both for the overall debate and for individual speeches.

6. Attendance at Meetings

Coping with the volume of work falling on the Joint Committee necessitates holding frequent meetings, of sub-Committees in particular. It has not always been easy to secure an adequate attendance at these meetings. Members of the European Parliament in particular have found it difficult to attend because of their many other commitments. Moreover, meetings have often clashed with meetings of other parliamentary committees to which Members of the Joint Committee have been appointed. With the increase in recent years of the number of committees some overlapping of membership and consequent problems of attendance seem to be unavoidable. The Joint Committee believes that this difficulty could be reduced if an arrangement similar to that which applies to Special Committees in the Dáil were adopted for its successor whereby a substitute could be nominated in place of a Member unable to attend a particular meeting.

In the case of any particular matter coming before the Joint Committee or its sub-Committees there may be Members of either House who have a special interest in the subject. The Joint Committee considers that such Members should be allowed to attend meetings and take part in proceedings without, however, having a right to vote.

7. Members of the European Parliament

At present the Irish members of the European Parliament are ex officio Members of the Joint Committee. In theory the deliberations of the Joint Committee should be helpful to the members of the European Parliament in their work in Europe and their European experience should be of assistance to the Joint Committee. In practice the arrangement has not proved to be a success. Because of their commitments in Europe, the members of the European Parliament have found that they are unable to attend meetings frequently enough to enable them to participate fully in the work of the Joint Committee. The Committee has come to the conclusion therefore that they should not be appointed to the next committee. However, they should be allowed to attend any meetings they wish and to participate in discussions but not in the decision making. Moreover, it should be possible for the next committee to arrange formal meetings with members of the European Parliament from time to time on particular topics of special importance.

At present the secretariat of the Joint Committee supplies the members of the European Parliament with briefs to assist them in their work on the Committees of that Parliament. The members concerned have found these briefs useful and the Joint Committee sees no reason why the arrangement should not be continued even if the European members are not appointed to the next committee.

The range of topics coming before the Joint Committee is so extensive that it is desirable that the interests and experience of its Members should be wideranging. For this reason it is considered that the number of members appointed to the next committee should be about the same as at present even if the members of the European Parliament are dropped.

8. Relations with Ministers

The arrangement whereby civil servants attend meetings of sub-Committees and supply factual information has been working satisfactorily for some time. The Joint Committee has every reason to be pleased with the quality of the assistance it has received from officials. However, it is debarred from raising questions of policy with these officials. Sometimes, it is precisely the policy implications of the issue before the Committee that predominate. In such cases it would greatly enhance the value of the Committee’s deliberations if it were able to discuss the question with the Government member concerned. This Committee has, indeed, already recommended that it be given the opportunity of discussing the annual review of farm prices with the Minister for Agriculture [Twenty-third Report (prl. 5321)].

If the recommendations made in this report are accepted the Joint Committee believes that its successor may be more concerned than it has been with policy questions and less with technicalities. It, therefore, recommends that the Ministers concerned should attend meetings of the next committee when draft reports on important topics are under consideration and participate in the discussion in much the same way as they participate in debates in Special Committees on Bills.

The Joint Committee is conscious of the fact that the demands on Ministers dealing with European affairs are very heavy. For that reason, it accepts that the attendance of Ministers at Committee meetings should be sought only when matters of particular importance are under consideration. The Joint Committee does not consider that it is necessary to make formal arrangements by Orders of the Houses. It would prefer to see a practice evolve which would be acceptable to the Government and useful to the Committee.

(Signed) CHARLES J. HAUGHEY,

Chairman of the Joint Committee.

23rd March, 1977.