Committee Reports > List of Committees > Joint > 1981 > Committee on the Secondary Legislation of the European Communities > Report No. 88 - Statutory Instruments [14]

REPORT

PART I

Introduction

1. Since it issued its Seventy-fifth Report (Prl. 8994) on 4th June, 1980 the Joint Committee has examined a further fourteen statutory instruments. These are listed in Appendix I to this Report. All of the instruments were made under the European Communities Act, 1972. A detailed examination of the instruments was carried out for the Joint Committee by its Sub-Committee on Statutory Instruments and Legal Affairs under the Chairmanship of Senator David Molony. The Joint Committee is indebted to Senator Molony and his Sub-Committee for their work.

2. In Part II to this report the Joint Committee has specific observations to make on provisions regarding four of the instruments examined.

PART II

European Communities (Recognition of General Nursing Qualifications) Regulations, 1980 [S.I. No. 237 of 1980]

European Communities (Recognition of Dental Qualifications) Regulations, 1980 [S.I. No. 90 of 1980]

3. Both instruments were made by the Minister for Health under section 3 of the European Communities Act, 1972.

S.I. No. 237 of 1980 implements Council Directives Nos. 77/452/EEC and 77/453/EEC which are aimed at facilitating the free movement of general nurses throughout the Community and amends the Nurses Act, 1950. Article 10 of the Regulations provides that An Bord Altranais “may charge such fees as it shall determine from time to time, with the approval of the Minister for Health, for services rendered etc.”. Such fees cover the cost of issuing appropriate certificates, documents, declarations, etc. to general nurses for the purposes of the Directive. Correspondence with the Minister’s Department on the subject is reproduced in Appendix II to this report.

S.I. No. 90 of 1980 amends the Dentists Act, 1928 and contains other provisions designed to implement the Council Directives governing the free movement of dentists. It provides [Article 14] for the charging by the Dental Board of “such fees as it shall determine from time to time, with the approval of the Minister for Health, for services rendered etc.”. These fees cover the cost to the Board of issuing appropriate certificates to Irish dentists going to other EEC countries. Correspondence with the Minister’s Department on the subject is reproduced in Appendix III to this report.

4. The Joint Committee has already accepted that in appropriate cases regulations made under the European Communities Act, 1972 may provide for the charging of fees. However, it has expressed objection to power being assumed in those regulations to fix or vary such fees administratively. In its view, fees should be prescribed in the regulations themselves so that the amount of the fees being charged remains under parliamentary control through the agency of the Joint Committee. This point was brought out in the Twentieth Report of the present Committee (Prl. 7279—paragraphs 10-12).

5. In the case of both instruments the Department of Health states that they propose to introduce new legislation and to incorporate in it the power to charge fees. Accordingly the Houses will have an opportunity of examining the position when the draft legislation comes before them. However, this may take some time. In the meantime the Joint Committee recommends that the present regulations should be amended to include provision in regard to fees and, if an undertaking to this affect is not given within two weeks by the Department, it recommends that the regulations be annulled.

Amendment of Statutes

6. Statutory instruments made under section 3 of the European Communities Act may amend statutes where this is necessary to give effect to Community legislation. In its Seventy-fifth Report (Prl. 8994, paragraph 26) the Joint Committee recommended that the statutory instruments in such cases should contain tables setting out in full the sections of the statutes as amended. In regard to S.I. No. 237 of 1980 referred to at paragraph 3 above which amends provisions of the Nurses Act, 1950 the Department of Health explain that the regulations had been drafted quite some time before the receipt of the Joint Committee’s report and attach a document showing the relevant sections as amended by the regulations. Ideally this should have been included in the instrument itself. The Committee is satisfied with the position and trusts that the practice will be generally adopted.

European Communities (Surveillance of Certain Motor Car Tyre Imports) Regulations, 1980 [S.I. No. 228 of 1980]

7. This instrument introduces a system of surveillance of imports of tyre cases of East German origin, which has been authorised by Commission Decision. This system involves imports being subject to the production of an import document issued by the Minister for Industry, Commerce and Tourism. In a previous report (paragraph 4 of Thirtieth Report—Prl. 5419) the former Joint Committee questioned the propriety of identifying tariff headings by reference to national legislation and considered that the relevant secondary legislation should be apparent from a perusal of the domestic instrument. It is pleased to note that the tariff heading referred to in the instrument is identified by reference to Community legislation.

European Communities (International Carriage of Goods by Road) Regulations, 1980 [S.I. No. 253 of 1980]

8. These Regulations purport to implement the First Council Directive of 23 July, 1962, as amended. The Council Directive, as amended, obliges Member States to free (a) certain categories of international road freight transport from national licensing control and (b) other categories from national quota systems while permitting national licensing to continue.

Operative Date of Directives

9. The First Council Directive is referred to in Article 30 of and Annex II to the Act of Accession as one requiring adaptation on accession of the new Member States. The adaptation envisaged was to cover “carriage by road between certain coastal regions in the Community separated by the sea.”. This adaptation was in fact effected by Council Directive 72/426/EEC of 19 December, 1972. Both these two Directives appear to have been binding on Ireland as from the date of accession.

10. The First Council Directive was subsequently further amended by four other Directives. The latter were to be implemented by the Member States by 1 July, 1974, 1 July, 1977, 1 May, 1978 and 1 July, 1980 at the latest.

11. The First Council Directive, as amended, was incorporated into Irish legislation by S.I. No. 253 of 1980 on 1 August, 1980. However, according to the minute of 18 Meán Fómhair, 1980 from the Department of Transport its provisions “were implemented by administrative action.”. The effect of this was that licences were not required in respect of those categories liberalised by the First Council Directive, as amended, notwithstanding the provisions of domestic legislation to the contrary. The relevant correspondence is reproduced in Appendix IV to this report.

12. In the past the Joint Committee has taken the view that it is for the Commission rather than the Committee to ensure that Community legislation is implemented nationally by the due date. However, it has also been concerned to ensure that the prerogative of the Oireachtas as the sole legislative authority in the State is safeguarded. It would appear in this case that a Government Department, in order to accommodate Community legislation, chose to ignore the provisions of legislation enacted by the Oireachtas, albeit in the knowledge that the legislation would be amended in due course. The Joint Committee does not think this was the correct procedure but is satisfied that the matter has been corrected by the statutory instrument.

(Signed) ALEXIS FITZGERALD,

Chairman of the Joint Committee.

11th March, 1981.