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REPORTI INTRODUCTIONInstruments examined1. Since it issued its Thirteenth Report, which considered 46 Statutory Instruments, the Joint Committee has examined a further 9 Statutory Instruments which are listed in Appendix 1 to this Report. These instruments were considered in detail by a Sub-Committee under the chairmanship of Deputy Maurice Manning and the Joint Committee gratefully acknowledges its indebtedness to Deputy Manning and his colleagues for their dedicated work. 2. In Part II of this Report the Joint Committee again draws attention to the methods of implementing Community secondary legislation, this time specifically in relation to instruments affecting the Road Traffic Code. In Part III the Joint Committee deals with three Statutory Instruments individually. II METHODS OF IMPLEMENTING COMMUNITY LEGISLATION3. In its consideration of the European Communities (Licensing of Drivers) Regulations, 1984 [S.I. No. 234 of 1984] the Joint Committee raised certain queries with the Department of the Environment. The Department’s reply is reproduced in Appendix 2 which indicates that Council Directive 80/1263/EEC on Driving Licences has been implemented in part by Regulations made under the Road Traffic Act, 1961 and in part by Regulations made under the European Communities Act, 1972. 4. The Joint Committee appointed on 26 July, 1973 in its twenty-second Report1 drew attention to the methods of implementing Community secondary legislation when it reported on its examination of the European Communities (Road Traffic) (Compulsory Insurance) Regulations, 1975 [S.I. No. 178 of 1975]. These Regulations also amended the Road Traffic Act, 1961 and the present Joint Committee considers it appropriate to reproduce the recommendations of its predecessor here in relation to the implementing of Community secondary legislation. “The Joint Committee accepts that Ministerial Regulations made under section 3 of the European Communities Act, 1972 may lawfully amend Acts of the Oireachtas or other statutes in force if such is required by the Community secondary legislation which the Regulations are to implement. However, the fact that the power exists ought not, in the Joint Committee’s opinion, mean that it is appropriate to use it in every case. Regard should be had to the relative importance of the statute to be amended and to the range of its application to determine whether the amendment should be effected by a Statutory Instrument or amending statute. In the case of a statute such as the Road Traffic Act, 1961 which is of such importance in the everyday life of citizens the Joint Committee considers that any proposals for its amendment should be initiated by a Bill introduced in the Dáil or Seanad. It recommends that when opportunity offers the European Communities (Road Traffic) (Compulsory Insurance) Regulations, 1975 [S.I. No. 178 of 1975] should be repealed and its terms incorporated in an amending statute”. 5. Additionally, in relation to the 1984 Regulations, the Joint Committee considers it most undersirable that the law relating to road traffic matters should be spread throughout different codes of legislation and proposes to raise the matter with the Department of the Environment with a view to having all primary legislation relating to road traffic contained in the Road Traffic Acts, and all subordinate legislation pertaining thereto, contained in Regulations made under those Acts. III PARTICULAR STATUTORY INSTRUMENTSEuropean Communities [Motor Vehicles (Registration of Importers) Act, 1968 (Repeal)] Regulations, 1984 [S.I. No. 367 of 1984]6. These Regulations repeal the Motor Vehicles (Registration of Importers) Act, 1968 and were necessitated by virtue of Ireland’s Treaty of Accession. Under Protocol 7 annexed thereto Ireland was obliged to terminate the scheme for special arrangements which applied to the assembly and importation of motor vehicles in Ireland. The statutory framework for this scheme was provided by the Act now being repealed. 7. The Joint Committee would like to make two specific points about this Instrument. Firstly, there should have been a reference to the Protocol in the citation of authority in the Instrument itself. Secondly, the Explanatory Note should not merely have explained why the Protocol required repeal of the Act but should also have made reference to the associated fiscal measures introduced by other Statutory Instruments following on the repeal of the Act. These measures have the effect of counteracting the benefit that might have accrued to consumers following the repeal of the Act. 8. In its twenty-second Report, the Joint Committee appointed on 26 July, 1973, stated quite plainly that in its view— “…it is a serious defect in drafting to omit from a Statutory Instrument made under the European Communities Act, 1972 any reference to the secondary legislation of the European Communities on which the exercise of the power of making Regulations under the Act ultimately depends”.1 9. This point was raised with the Department and the relevant correspondence is reproduced at Appendix 3. 10. The Department’s explanation and assurance does not, in the Joint Committees view, expiate the serious deficiencies in this Instrument. But for the fact that it implements important Treaty obligations, the Joint Committee might have seriously contemplated exercising its statutory sanction of recommending annulment. The Joint Committee also wishes to direct the aforementioned criticism to other Departments who have been remiss in this respect. European Communities (Cereal Seed) Regulations, 1985 [S.I. No. 25 of 1985]11. In the Joint Committee’s view this instrument is open to objection on two grounds. In the first place it purports to have retrospective effect: these Regulations purport to postpone the operative date for implementation of 1983 Regulations from 1 January, 1985 to 1 January, 1986, but the Instrument was not made until 5 February, 1985. The reason why this is objectionable is that the parent statute does not in terms authorise the making of regulations with retrospective effect. Retrospective provisions are particularly objectionable when they appear to be aimed at legitimising actions which were unlawful at the time of commission as this instrument may be. Specific authority delegated by the Oireachtas should be required for any such provision in subordinate legislation and if such is not available there is no alternative to proceeding by way of introducing a Bill no matter how inconvenient that may be for the Department concerned. 12. In a second respect the Joint Committee feels that the instrument is open to objection of an even more fundamental nature. The need for the instrument arose solely from domestic circumstances which gave rise to a need to use up second generation seed. It does not appear in any way to be giving “full effect” to any secondary legislation of the EC. While the Joint Committee does not disagree with what the instrument seeks to do it cannot accept that that objective can be achieved by Regulations made under Section 3 of the European Communities Act, 1972. The matter should have been dealt with by statute instead of Statutory Instrument if the Minister could not have availed of some other delegated legislative power. 13. The Joint Committee feels that these objections justify it recommending the annulment of the instrument. However, the Joint Committee is refraining from recommending annulment for the only reason that the instrument is to have effect for only one year, half of which is already gone. 14. Correspondence with the Department of Agriculture is reproduced in Appendix 4. Land Act, 1965 (Additional Category of Qualified Person) Regulations, 1983 [S.I. No. 144 of 1983]15. The Joint Committee considered these Regulations in its Tenth Report (paragraph 24). The effect of the Regulations is to add nationals of Member States exercising the right of establishment to the category of qualified persons for the purposes of the Land Act, 1965. The Joint Committee stated in its Report that it was interested in whether or not the administration of these Regulations had given rise to any problems. Correspondence with the Land Registry and the Department of Agriculture is reproduced in Appendix 5. 16. Having investigated the matter the Joint Committee is satisfied that the new category of qualified persons is clear and that the Instrument gives rise to no administrative difficulties. In particular, the Joint Committee notes that the category only comprehends EEC citizens who are exercising the right of establishment as self employed persons in this country by way of economic activity and who acquire an interest in agricultural land for the purpose of exercising that right. The category does not include the acquisition of land by companies, or persons acquiring holiday or retirement homes. The Court proceedings instituted by the Commission in pursuance of its contention that Section 45 of the Land Act, 1965 was in breach of Article 52 of the EEC Treaty, as already stated in the Joint Committee Report of 7 November, 1985, have been discontinued. JOE WALSH T.D. Acting Chairman of the Joint Committee 31 July, 1985. |
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