FOURTH JOINT COMMITTTEE
REPORT NO. 23
33 STATUTORY INSTRUMENTS
1.Since it issued Report No. 16 on 31 July, 1985 the Joint Committee has examined a further 33 statutory instruments. These are listed in Appendix I to this Report. These instruments were considered in detail by the Sub-Committee on Legal Affairs and Statutory Instruments under the Chairmanship of Deputy Maurice Manning. The Joint Committee is grateful to Deputy Manning and his colleagues. The Joint Committee has the following observations to offer in connection with five of the instruments examined.
It has no comment to make on the remaining.
Implementation of EEC Directives
2.In the Joint Committee’s experience the most significant use made of the power conferred by section 3 of the European Communities Act, 1972 is making regulations for the purpose of implementing EEC Directives. Article 189 of the EEC Treaty provides that “a directive shall be binding, as to the result to be achieved upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”. Accordingly while a Directive becomes binding on a Member State as soon as it has been adopted by the Council or the Commission it does not normally, at least, impose obligations on individual citizens until the “choice of form and methods” has been made by the appropriate national authority. If that “choice” involves changing the national law, as it usually does, the national authority in this country which must make the “choice” is the Oireachtas. The Oireachtas has delegated that power to Ministers by section 3 of the European Communities Act, 1972 and Ministerial Regulations made under that section are an appropriate method for implementing EEC Directives. The Houses of the Oireachtas have, however, retained through the agency of this Committee the right to supervise the making of such regulations.
3.Ministerial Regulations made under section 3 of the European Communities Act, 1972 are also sometimes used to enact consequential provisions arising from the adoption of EEC Regulations. By virtue of Article 189 of the EEC Treaty an EEC Regulation “shall have general application” and “shall be binding in its entirety and directly applicable in all Member States”. Unlike an EEC Directive an EEC Regulation may impose obligations on individual citizens as soon as it comes into effect on adoption by the Council or Commission. However to make it effective within the national legal system an EEC Regulation may require supporting national legislation e g to provide for penalties for non-compliance or to set up appropriate administrative procedures. Such legislation in this country usually takes the form of Ministerial Regulations made under section 3 of the European Communities Act, 1972.
4.The Joint Committee considers that, while it is essential to cite the title of the relevant Directive when making and implementing Ministerial Regulations, the Regulations should themselves be self-contained and should set out in terms normally used in Irish legislation what obligations are being imposed or what rights are being conferred on individual citizens. The Committee does not see that there can be any legal or practical barriers to adopting this course. The Treaty explicitly leaves “to the national authorities the choice of form and methods” and the Department concerned in deciding on “the result to be achieved”
has the benefit not merely of the text of the Directive but the knowledge gained from participation in the Council Committee which examined the Directive when it was in draft form. It should therefore be possible for the Department concerned to issue precise instructions to the draftsman so that he does not have to rely on the text of the Directive.
5.The Joint Committee has noted that in most instances Ministerial Regulations implementing EEC Directives seek to incorporate the Directive into Irish law sometimes in its entirety and more usually in part. For example, these Regulations often provide that terms of the Directive shall be complied with thus making those terms directly applicable and binding on Irish citizens.
It is also common practice to provide that a word or term used both in the Regulations and the Directive shall have the meaning it has in the Directive which, it seems to the Committee, has the effect of attracting the jurisdiction of the European Court in any justiciable dispute as to the meaning of the Regulations.
6.The Joint Committee considers that the effect of this current practice is in many instances to give to EEC Directives the status of EEC Regulations within the Irish legal system. If that result was what was decided the Council or the Commission, as the case may be, would have adopted a Regulation and not a Directive in the first instance if it were within its competence to do so. In the Committee’s view Irish Ministerial Regulations should reflect the legislative supremacy of the Oireachtas within the national system.
7.The Joint Committee raised these issues with the Department of Finance in connection with the European Communities (Customs) Regulations, 1984
(S.I. No. 365 of 1984) and the European Communities (Customs) (No. 2)
Regulations, 1984 (S.I. No. 366 of 1984) and with the Department of Industry, Trade, Commerce and Tourism in connection with the European Communities (Stock Exchange) Regulations, 1984 (S.I. No. 282 of 1984).(1)
Each of these instruments contains a provision that a word or expression used in the Regulations and also used in the Directives shall, unless the context otherwise provides, have the meaning in the Regulations which it has in the Directive. They also contain other provisions which appear to have the effect of incorporating provisions of Directives directly into Irish law e g Articles 4, 5, 6, 7 and 8 of S.I. No. 365 of 1984. Articles 4, 5, 6, 7, 8, 10 and 12 of S.I. No. 366 of 1984 and Articles 3, 4, and 5 of S.I. No. 282 of 1984. Correspondence with the Departments is reproduced in Appendix II to this Report.
8.The Joint Committee does not find anything in the observations by the Departments which would convince it to change the views it has expressed above. In particular, it does not accept that the limited discretion left to national authorities by a particular Directive or the convenience of implementing authorities should be a determining factor. However, it should like to make it clear that it is not raising objections to the Regulations in question on the grounds that they were not within the competence of the Ministers concerned. What the Committee is suggesting is that there is an alternative method of implementing Directives which would better reflect the legislative supremacy of the Oireachtas in the domestic sphere and make it easier for persons affected to be aware of their obligations under Irish implementing legislation.
9.The Joint Committee notes that the Department of Finance has sought the views of the Office of the Attorney General on the position generally and has promised to make those views known to the Committee. The Committee will consider the matter further when these views are available. In the meantime it would ask all Departments to review its practice in light of this report.
10.Like its predecessors the Joint Committee has had occasion to criticise Explanatory Notes appended to some statutory instruments on the grounds of inadequacy of content. In Report No. 13 of 31st January, 1985 the Committee complained that the Merchandise Marks (Prepacked Goods) (Marketing and Quantities) (Amendment) Order, 1983, which was made under the Merchandise Marks Act, 1970, contained no reference either in the Order itself or in the appended Explanatory Note, to the Council Directives which it was intended to implement. In this connection the Committee is pleased to note that there is a reference to the relevant Council Directives in the Explanatory Note appended to a more recent order made on this subject by the Minister for Industry, Trade, Commerce and Tourism on 5th September, 1985 namely the Merchandise Marks (Prepacked Goods) (Marking and Quantities) (Amendment)
11.The Joint Committee regrets, however, that it cannot commend the Explanatory Note appended to another statutory instrument dealing with Merchandise Marks made by the same Minister on 15th July, 1985. The Explanatory Note appended to the European Communities (Repeal and Revocation of Certain Provisions) Regulations, 1985 reads:-
“These Regulations revoke the statutory requirements relating to the origin marking listed in Regulations 2 and 3 of the Regulations”.
In the Joint Committee’s opinion this note is quite useless and gives no information that could not be gleaned from a casual reading of the instrument which itself consists entirely of legislation by reference. Enquiry of the Minister’s Department revealed that the necessity for the instrument arose from a decision of the Court of Justice in an action taken by the Commission against the United Kingdom. In the Committee’s opinion the Explanatory Note should have indicated what in practice the changes made by the instrument amounted to, and why these changes were necessitated by the Court’s decision.
Action on Committee’s Recommendations
12.Finally, the Joint Committee is pleased to note that further to its recommendation in Report No. 13 adopted 31 January 1985, that the Minister for Agriculture has amended two instruments. These are the European Communities (Vegetable Seeds) Regulations 1981 and the European Communities (National Catalogue of Agricultural Plant Varieties) Regulation 1981. The provisions relating to fixing of fees administratively have been repealed. The present Joint Committee and its predecessors have objected to the practice whereby Ministers assume such powers instead of specifying the fees in the Regulations because the effect is to remove fees from parliamentary control.
Gerard Collins T.D.,
Chairman of the Joint Committee.
18 December, 1985.
(1) The Joint Committee proposes to issue a separate Report on the Stock Exchange Regulations in the near future.