1.Since it issued its report of 18 December, 1985 (1) the Joint Committee has examined the further 21 statutory instruments which are the subject of this report. A detailed examination of these instruments was undertaken for the Joint Committee by a Sub-Committee under the Chairmanship of Deputy Maurice Manning. The Joint Committee is indebted to Deputy Manning and his colleagues and wishes to express its appreciation of the invaluable work which they have carried out for it in examining these and other statutory instruments. Correspondence with the relevant Government Departments in regard to the six statutory instruments dealt with in detail in this report is reproduced in Appendices 2 to 7 inclusive.
European Communities (Employment Equality) Regulations, 1985 (S.I. No. 331 of 1985)
2.These Regulations amend the Employment Equality Act, 1977 so as to modify provisions of that Act which provide that the sex of a person shall be an essential qualification for certain employments including employment in the Garda Siochana and the prison service. The Regulations were apparently made to avoid legal proceedings being taken by the Commission against Ireland on the grounds that Irish legislation did not conform with the requirements of Council Directive 76/207/EEC on the implementation of the principle of equal treatment of men and women as regards access to employment, vocational training and promotion, and working conditions.
3.One of the amendments of the 1977 Act made by the Regulations is the insertion of a new section 17B which provides that “orders, regulations, rules, directions, instructions, arrangements or schemes to which this section applies shall not treat men and women differently” except in certain respects. The section is stated to apply to various orders, regulations, schemes, arrangements, directions, instructions made or given under a number of statutes. The Joint Committee considers it undesirable that statutory instruments should be amended in this fashion. In its view it was the duty of the Departments concerned to identify what statutory instruments were involved and to arrange to have each of them amended separately in whatever respect was thought necessary.
4.The Regulations were made by the Minister for Labour and the Joint Committee took the matter up with his Department in the first instance. As will be seen from Appendix 2 that Department took the advice of the Attorney General whose Office confirmed the Joint Committee’s view. That advice indicated that where existing discriminatory provisions in statutory instruments had been identified the Department concerned should “provide for appropriate repeals and amendments”. According to the Department of Labour the Department concerned is the Department of Justice which informed the Joint Committee that no discriminatory instruments exist as far as the Garda Siochana is concerned. However there are discriminatory provisions in the Rules for the Government of Prisons, 1947 and the attitude of the Department of Justice to the amendment of those Rules is set out in its minute of 12th June, 1986 a copy of which is contained in Appendix 2 to this report.
5.Apparently the Department of Justice considers that a revision of the 1947 Rules is desirable “to bring them into line with modern standards and practices” but does not have the “staff resources” to undertake the task. It considers that “it would not be practicable or desirable to amend them piecemeal specifically to deal with equality issues without also dealing with other equally important aspects of the Rules”. The Joint Committee is quite at a loss to understand what basis there can possibly be for this extraordinary proposition. It is constantly seeing statutory instruments which amend earlier instruments in matters of detail and it fails to see that Prison Rules are in a category different from other statutory instruments which makes no amendment of them “practicable” unless a major revision is undertaken. In the Committee’s view a simple amendment of the Prison Rules is much more “desirable” than the convoluted provisions of the new section 17B inserted in the Employment Equality Act, 1977. The Joint Committee recommends that as advised by the Attorney General the Prison Rules be amended without delay to remove whatever discriminatory provisions they contain. If as appears to be the case these Rules are the only statutory instrument comprehended by section 17B that section should then be repealed. Insofar as that section purports to apply to administrative as distinct from legislative acts - such as instructions, directions and arrangements - no legislative provision seems necessary since these acts can be changed by administrative measures.
6.The Joint Committee asked the Department of Labour why the explanatory memorandum appended to the Regulations made no reference to the fact that the reason for making it was the proceedings initiated by the Commission. In the Committee’s view this information should clearly have been given in the explanatory memorandum as otherwise there was nothing to indicate that the instrument was properly made under the European Communities Act, 1972. The responsibility for preparing the explanatory memorandum is that of the Department and not the Attorney General’s Office. The Committee can only assume that in referring this matter to the Attorney General the Department must have misunderstood the Committee’s query.
European Communities (Consolidated Supervision of Banks) Regulations, 1985 (S.I. No. 302 of 1985)
7.The Joint Committee considers it important that any notion that the EEC can “legislate” for this country by means of Directives should be corrected. A Directive, according to Article 189 of the EEC Treaty is “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 forms and methods”. If the “result to be achieved” requires legislation in this country, the national authority which has “the choice of forms and methods” is the Oireachtas and only the Oireachtas by virtue of Article 15 of the Constitution and when a Minister effects such a “choice” by making regulations under the European Communities Act, 1972 he is acting as a delegate of the Oireachtas. These considerations motivated the Joint Committee to direct a number of apparently technical queries to the Department of Finance regarding the above-mentioned Regulations. The correspondence with the Department is reproduced in Appendix 3 to this Report.
8.Regulation 3 of the Regulations extends the definition of the “statutory functions” of the Central Bank which are referred to in sections 17 and 18 of the Central Bank Act, 1971 to include “a reference to any function imposed on the Bank by virtue of these regulations and the Directive”. Regulation 4 of the Regulations speaks of the Bank’s statutory functions under these Regulations and the Directive”. The Joint Committee disputes the implication that the Central Bank has or can have any functions under the Directive. The conferring of any such functions is solely within the competence of the Oireachtas. The Joint Committee does not consider that the Department’s reply to its query on this point has any relevance. It considers that the Regulations must be amended to exclude any reference to the Directive in Articles 3 and 4 thereof.
9.Under articles 4 and 5 of the Directive Member States or their competent authorities are permitted the exercise of a discretion in certain circumstances. According to the Department of Finance, the Central Bank, which is the competent authority for this country, proposes to exercise this discretion on a “case by case” basis. The Department says that the Central Bank is empowered to do so because section 18 of the Central Bank Act, 1971 confers certain powers on the Bank” ‘for the due performance of its statutory functions’ which by Regulation 3 includes a function imposed on the Bank by the Directive”. As already stated the Joint Committee must reject any contention that functions can legally be imposed on the Bank by the Directive: that is a matter exclusively for legislation enacted by or made under authority delegated by the Oireachtas. If the amendments to Regulations 3 and 4, which the Joint Committee consider should be made, leave in doubt the question whether the Central Bank may exercise the discretionary power referred to, that can be remedied by providing in the amending Regulations that the Bank may do so.
10.Article 5(4) of the Directive entitles the competent authorities of one Member State to ask the competent authorities of another Member State to verify information concerning a credit or financial institution in the latter State. The Directive continues:-
“The authorities which have received the request, must, within the framework of their competence, act upon it either by carrying out the verification themselves, or by allowing the authorities who made the request to carry it out, or by allowing an auditor or expert to carry it out”.
According to the Department of Finance this obligation required that a provision be made in the Irish Regulations empowering the Governor of the Central Bank to authorise persons who are neither officers of the Bank nor holders of recognised qualifications in accountancy (as required by section 17(3)(a) of the Central Bank Act, 1971) to verify consolidated returns. According to the Department, “should another EEC supervisory authority wish to verify the returns itself the Bank is bound by the Directive to assist in such a verification” and the official designated by the foreign supervisory authority might not possess a recognised qualification in accountancy.
11.The Joint Committee cannot accept the Department’s interpretation of Article 5(4) of the Directive and it believes that to allow that interpretation to stand unchallenged could have serious implications for the authority of the Oireachtas. Article 5(4) does no more, in the Committee’s view, than oblige national authorities to act in one or other of three ways within the competence of their authority. In the Committee’s view it is a matter solely for national legislation to determine the framework of the competence of national authorities and the only limitation which the Directive imposes on national legislatures is to provide within the framework of that competence a power to respond in one or other of three ways. In the Committee’s opinion the 1985 Regulations are defective in that they fail to empower the Central Bank to respond to a request under Article 5 (4) of the Directive at all. The Regulations have been drafted on the assumption that the Directive does what only the Oireachtas can do, namely, confer a power on the Central Bank. Moreover it seems also to have been assumed that the Central Bank must comply with the wishes of the foreign supervisory authority as to the manner of verification whereas, in the Joint Committee’s view, the Central Bank should respond in whichever one or more of the three ways that is sanctioned by national legislation. The Joint Committee must therefore call for an amendment of the 1985 Regulations which will pay due regard to the constitutional position of the Oireachtas.
European Communities (Life Assurance) (Amendment) Regulations, 1985 (S.I. No. 296 of 1985)
12.These Regulations arise from the necessity on non-life insurers to cease carrying on permanent health insurance in order to comply with the requirement of Council Directive 79/267/EEC that this business be carried on only by life insurers. Regulation 3 extended the period for complying with the requirement to the end of March, 1986 to enable the Norwich Union to transfer existing policies to a life insurer. The Regulations also provide for the appointment of authorised investigation officers and amends the European Communities (Life Insurance) Regulations, 1984 in relation to offences. The Joint Committee has no comment to make on the Regulations. Correspondence with the Department of Industry and Commerce regarding the Regulations is set out in Appendix 4 to this report.
Food Standards (Fruit Juices and Fruit Nectars) (European Communities) (Amendment) Regulations, 1984 (S.I. No. 266 of 1984)
13.These Regulations which were made under Section 2 of the Food Standard Act, 1974 amended Regulations made in 1978 in order to give effect to amending Council Directives. One of the amendments substituted for Regulations 4 and 5 of the 1978 Regulations a new Regulation 4. The latter provides that a person “shall not market” certain products except under prescribed conditions while the Regulations replaced had provided that a person “shall not sell” similar products which did not conform to certain requirements. The Joint Committee raised with the Department of Industry and Commerce the question whether the change in terminology had any significance. Copies of the correspondence appear in Appendix 5 to this report.
14.As will be seen from the correspondence no significance attaches to the variation in phraseology which arose because the draftsman of the 1984 Regulations tried to adhere to the wording of the Directive. The Joint Committee considers that there is no obligation slavishly to follow the precise wording of a Directive which binds the State only as to the result to be achieved. In the Committee’s view it would be preferable in drafting national Regulations implementing Directives to use terms that are normally used in expressing similar concepts in national legislation which has no EEC connotation.
European Communities (Waste) Regulations, 1984 (S.I. No. 108 of 1984
15.As will be seen from the correspondence reproduced in Appendix 6 to this report the sole purpose of these Regulations, which replace Regulations made in 1979, is to replace the Electricity Supply Board by the Minister for the Environment as the designated authority for the disposal of polychlorinated biphenyle and polychlorinated terphenyle in this country. The Joint Committee has no objection to the provisions of the Regulations but it does have objections to the explanatory memorandum appended to them. That memorandum gave no indication that the amending Regulations were due entirely to domestic factors but left the impression that they arose from the relevant EEC Directive. In the Committee’s view the explanation furnished in the Department’s minute of 12th February, 1986 (see Appendix 6) should have been given in the explanatory memorandum in the first instance.
European Communities (Feeding Stuffs) (Additives) (Amendment) Regulations, 1984 (S.I. No. 261 of 1984 and S.I. No. 315 of 1985)
16.These Regulations which amend earlier Regulations implement Council Directives dealing with the use of additives in animal feeding stuffs. Broadly speaking the effect of the Regulations currently in force is to permit only prescribed additives being used in feeding stuffs subject to other requirements being observed and to prohibit the use of such additives in other ways for animal feeds. In the course of correspondence with the Department of Agriculture in relation to the 1984 Regulations (see Appendix 7) the Joint Committee learned that the level of fine (£200) for breach of the Regulations, which has remained unchanged since 1974, is at present under review in connection with the preparation of further amending Regulations. It will be noted from the correspondence that farmers as well as merchants are subject to the provisions of the Regulations though it is apparently accepted that control at farm level is practically impossible. The Committee notes that a new Directive has been accepted which virtually codifies existing Directives on the subject. It recommends that when this Directive is being implemented the opportunity will be taken to consolidate the Irish Regulations on the subject which extend back to 1974.
(1) Report No. 23 33 Statutory Instruments