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APPENDIX 2EUROPEAN COMMUNITIES (EMPLOYMENT EQUALITY) REGULATIONS, 1985.[S.I. NO. 331 OF 1985]Our Ref: EC4/58 Secretary Department of Labour Re:- European Communities (Employment Equality) Regulations, 1985. [S.I. No. 331 of 1985] I am directed by the Chairman of the Joint Committee, Mr. Gerard Collins, T.D., to refer to the above Regulations. It is nowhere specified in the regulations as to why the Employment Equality Act, 1977 is being amended. There was also a similar omission in the 1982 Regulations. [S.I. No. 302 of 1982] I am to request the reason for this omission and also the reason any existing offending regulations already made under the various Acts specified in para 17B (2) of Regulation 5 are not being repealed. Does para 17B (1) in fact supercede existing regulations, orders etc. which are discriminatory under the terms of Council Directive 76/207/EEC ? _________________________ S. Phelan Clerk to Joint Committee 26 November, 1985. Ref: EC4/58 Secretary Department of Labour. I am directed by Mr. Gerard Collins, T.D., Chairman of the Joint Committee on the Secondary Legislation of the European Communities to refer to the European Communities (Employment Equality) Regulations, 1985, and to my letter of 26 November, 1985. It is understood that the Regulations were made following on the delivery of an opinion by the Commission under Article 169 of the EEC Treaty that Ireland was not fulfilling its obligations under Council Directive 76/207/EEC. If this is correct I am to invite your comments on the absence from the explanatory note appended to the Regulations of any reference to the background to the making of the instrument. I am also to refer to the new section 17B which is being inserted in the Employment Equality Act, 1977 by the Regulations. It would appear that this section is apparently intended to effect a blanket amendment of certain statutory instruments as well as instructions and directions. I am to ask you to indicate for the information of the Joint Committee whether this section is intended to have permanent effect or whether it is proposed to amend the statutory instruments individually in due course. _________________________ Seamus Phelan Principal Committee Clerk 8 January, 1986. 10 January, 1986. Mr. Seamus Phelan Clerk Joint Committee on Secondary Legislation Leinster House Dublin 2 European Communities (Employment Equality) Regulations, 1985. S.I. No. 331 of 1985 A Chara, I am directed by the Minister for Labour to refer to your minute of 26 November, 1985 (Ref. No. EC4/58) concerning the aforementioned regulations, and to say that the Office of the Attorney general, which has been consulted in the matter, has advised as follows. “(a)It is never the practice in regulations to refer to any matter other than legally binding instruments which confer the power or create the obligation to make the regulations. In the present instance this was done, i.e. the regulations were made in exercise of the power so conferred by section 3 of the European Communities Act, 1972, for the purpose of giving effect to Council Directive 76/207/EEC. The necessity to make the regulations arose because the Commission, in a reasoned opinion, expressed the view that the then existing law was not in conformity with the Directive. Following examination of the matter, it was considered that the State could not successfully defend the then existing law in the event of the Commission bringing the matter before the Court of Justice under Article 169 and that the law should be amended. Had the amendment of the law been effected following a legally binding act within the meaning of Article 189 of the Treaty, e.g. a decision addressed to the State or a further directive, such act would have been referred to in the regulations but it is not the practice to refer to the existence of a reasoned opinion which has no binding force. (b)It would be more appropriate for any ‘offending’ regulations to be repealed separately in the regulations made under each of the applicable Acts (if it is in fact necessary to do so) than in a regulation made under the European Communities Act, 1972, which is entirely concerned with the amendment of existing statute law. I have no information on whether there are in fact ‘existing off ending Regulations’ and this is a matter which you would need to check with the other Departments concerned. (c)If there are in fact existing discriminatory regulations, orders, etc., then in my view such regulations, as from the date of the passing of the 1985 Regulations must, to the extent of their inconsistency with the 1985 Regulations, be regarded as no longer valid. This would, of course, be an unsatisfactory situation and steps should be taken in the Departments concerned to identify any such inconsistencies and provide for appropriate repeals and amendments”. With regard to (a) above, I would refer you also to Para. 13 of “Instructions on the Printing and Publication of Statutory Instruments” appended to Circular 4/59 of the Department of Finance dated 13 Bealtaine, 1959. Action on (b) and (c) would be a matter for the Department of Justice in the first instance, and we have accordingly asked them to write to you directly on this aspect of your enquiry. Mise le meas _________________________ B. O’Riordain Principal Officer 8/480/3 Mr. Seamus Phelan Clerk Joint Committee on Secondary Legislation Leinster House Dublin 2 Re:-European Communities (Employment Equality) Regulations, 1985. [S.I. No. 331 of 1985] I am directed by the Minister for Justice to refer to your minute of 26 November, 1985 to the Department of Labour concerning the above Regulations and that Department’s reply of 10 January, 1986. Section 17B(2) of the Regulations provides that the Regulations shall apply to existing Acts, Rules, etc., so far as they relate to employment in the Prison Service. The only relevant legal provisions governing the Prison Service which could be said to contravene the Regulations are those concerning the custody and supervision of female prisoners, which are contained in the Rules for the government of Prisons, 1947 (No. 320). These Rules are the statutory rules governing the administration of the prisons and places of detention and those which apply to female prisoners provide generally that female prisoners should be supervised by female staff only. While many of these provisions are justified on grounds of decency and thus would not contravene the Regulations, it is obviously unsatisfactory that there should be rules which do not fully reflect the current statutory position in relation to employment equality. However, the Department regards any such rules as having been superceded by the new Regulations. As evidence of this, the Department is proceeding, in consultation with the Prison Officers’ Association to implement an agreed equality policy for staff, both male and female, and a copy of the Departmental policy statement in the matter is enclosed. As regards the question of the repeal or amendment of those Rules which are not in accordance with the new Regulations, this is something that is best looked at in the context of the need to revise the 1947 Rules as a whole. Many of the Rules have, with the lapse of time, become outdated and have fallen into disuse. While this has not given rise to any significant difficulties in practice, the revision of the Rules to bring them into line with modern standards and practices is clearly desirable. However, it is a major task for which staff resources unfortunately are not available in the Department at present. Because of the need to update the Rules generally, it would not be practicable or desirable to amend them piecemeal specifically to deal with the equality issues without also dealing with other equally important aspects of the Rules. Some considerable work has already been done on the general revision of the Prison Rules and this is something that will get underway again as soon as staff resources allow. _________________________ B. O’Neill Principal 12 June, 1986. |
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