Committee Reports > List of Committees > Joint > 1981 > Committee on the Secondary Legislation of the European Communities > Report No. 89 - Implementation of Council Directives

REPORT

Introduction

1. Since it issued its Sixty-sixth Report (Prl. 8620) in December, 1979 the Joint Committee has again examined the question of the implementation of Council Directives in Ireland. A detailed examination of this matter 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 the Sub-Committee for their work.

Implementation of Council Directives

2. Some EEC Directives e.g. 72/159/EEC, as amended, (Farm Modernisaton Scheme) and 75/286/EEC, as amended, (Disadvantaged Areas Scheme) are implemented in this country by what the Department of Agriculture describes as “non-statutory” or “administrative” measures. These schemes are financed partly by Community and partly by national funds. The national contribution is voted annually by the Dáil and the sum voted is appropriated to the service concerned by the annual Appropriation Act. The latter is the sole legislative basis for the schemes within the State.

3. The previous Joint Committee (Eleventh Report—Prl. 4669; and Thirtieth Report—Prl. 5419—par. 2) objected to this practice on the grounds that it frustrated the control which the Houses intended to exercise over the implementation of Community secondary legislation. In that Committee’s view the detailed provisions of those schemes should have been incorporated in statutory instruments made under the European Communities Act, 1972 and so be brought under parliamentary control through the agency of the Committee. The Committee’s view was not accepted by the Department.

4. The present Joint Committee revived this issue in December, 1979 (Sixty-sixth Report—Paras 3-6). Drawing attention to the fact that Directive 72/160/EEC (Farmers’ Retirement Scheme) had been implemented by a statutory instrument it asked the Department to re-examine the position in relation to the other Directives. The correspondence with the Department is contained in the Appendix to this report.

5. In its minute of 6 Deireadh Fómhair, 1980 the Department appears to identify itself as the national authority to which the Treaty leaves “the choice of form and methods” of implementing these Directives. If the implementation of a Directive requires legislation only the Oireachtas can do so by virtue of Article 15.2.1° of the Constitution though it can delegate the power to the Executive. Has it done so by appropriating the necessary money in the annual Appropriation Act? Presumably the case Latchford and Sons Ltd. v. Minister for Industry and Commerce [1950] IR 33 would be cited on the Department’s behalf as authority for saying that it has. The previous Committee held that, although it was not at all clear to it that this decision was applicable to schemes financed partly from the Community and partly from national resources, a different view might be held in some Government Departments (Thirtieth Report, Prl. 5419, par. 2). However, the views expressed by the Department of Agriculture in its minute (Appendix hereto) would not lead the Joint Committee to change its opinion. It remains the view of the Joint Committee that Directives such as the two under question should be implemented by statute or statutory instrument.

Views of Committee of Public Accounts on Appropriation Act

6. The Committee of Public Accounts in its report dated 21st April, 1977 on the Appropriation Accounts, 1974 (par. 12) examined the question of payments from the Exchequer which were in excess of the limits laid down in legislation and for which the statutory validation was held to be provided in the Appropriation Act. That Committee held that it was clear to it that “the efforts made in the past to justify, by reference to the Appropriation Act, the making of payments in excess of amounts specifically provided for in particular legislation has now led to the situation in which, as in the case of the housing reconstruction grants, statutory limits are being ignored and parliamentary control is no longer evident”.

7. On the general principle involved, the Committee made the following points, inter alia,—

“(a) The Appropriation Act appropriates moneys voted by Dáil Éireann for services described in Part I, the ambit, of each estimate. It makes no reference to the subheads and therefore gives no legal standing to the subheads. A subhead which provides for a payment to CIE could not therefore be held, by virtue of the Appropriation Act, to provide statutory validation for payments in excess of the limits laid down by the Transport Acts.

.....................................................

.....................................................

(d) Successive Committees of Public Accounts have been adamant that the Appropriation Act provides no statutory cover for payments in excess of the limits laid down by particular statutes relating to, for example, transport, housing, pensions. This Committee holds the same view.”.

Recommendation

8. These observations by the Committee of Public Accounts reinforce the views held by the Joint Committee i.e. that the Appropriation Act of itself could not provide statutory validation for payments.In these circumstances and in view of the fact that the Appropriation Act is the sole legislative basis for the Farm Modernisation Scheme and the Disadvantaged Areas Scheme within the State, the Joint Committee recommends that the present practice for the implementation of these schemes be abandoned and be replaced by appropriate statutory legislation.

9. In view of the importance of this matter the Joint Committee requests that a debate take place in Seanad Éireann. In this connection the Joint Committee refers to the order of Seanad Éireann of 18th February, 1981.

(Signed) ALEXIS FITZGERALD,

Chairman of the Joint Committee,

11th March, 1981.