Committee Reports > List of Committees > Joint > 1986 > Committee on the Secondary Legislation of the European Communities (4th Committee) > Report No. 35 - Statutory Instruments [19]

INTRODUCTION

1.The Joint Committee on the Secondary Legislation of the European Communities has completed its examination of a further nineteen statutory instruments⁽¹⁾ since it issued its last report on statutory instruments, Report No. 32 of 8th July 1986. Its comments on these instruments are set out in this report which also contains some further observations relating to the European Communities (Employment Equality) Regulations, 1985 (S.I. No. 331 of 1985) which were dealt with in Report No. 32.

2.In accordance with normal practice the detailed examination of the instruments dealt with in this report was carried out for the Joint Committee by a Sub-Committee under the chairmanship of Deputy Maurice Manning. The Joint Committee continues to be indebted to Deputy Manning and his colleagues for their painstaking work.

European Communities (Employment Equality) Regulations, 1985 (S.I. No. 331 of 1985)

3.These regulations were made following the issue by the Commission of a Reasoned Opinion under Article 169 of the EEC Treaty that Ireland was in breach of its obligations in failing to fully implement Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions. The regulations which were made by the Minister for Labour are intended to meet the objections of the Commission which apparently are accepted by the Government as valid. The regulations are dealt with in paragraphs 2 to 6 of Report No. 32 and correspondence in relation thereto is reproduced in Appendix 2 to that report.

4.One of the questions raised by the Joint Committee with the Department of Labour was why no reference was made in the explanatory note appended to the instrument to the fact that it was made to meet Commission objections. As will be seen from Appendix 2 to Report No. 32 the Department in its reply, while referring to paragraph 13 of the Circular 4/59 issued by the Department of Finance containing “Instructions on the Printing and Publication of Statutory Instruments”, cited advice received from the Attorney General’s Office indicating that “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”. This advice bears on the drafting of the regulations themselves which is the responsibility of the parliamentary draftsman but about which the Joint Committee had not raised any question, and has nothing to do with the contents of the explanatory note which is solely the responsibility of the Department. For this reason this Committee in Report No. 32 made the comment that it assumed that the Department must have misunderstood the query.

5.The Joint Committee has since received a letter from the Department (see Appendix 2 to this report) indicating that it did not misunderstand the query and that its response thereto was to refer to Circular 4/59. In the Department’s view the terms of that Circular rules out explaining why an instrument was made. In this Committee’s view, if the instructions in the Circular prevented the Department of Labour from stating in the explanatory note appended to S.I. No. 331 of 1985 that it was made to meet Commissions objections, the instructions need revision. The Committee is advised that the Joint Committee on Legislation, which is reviewing delegated legislation in general, is considering whether new guidelines for explanatory notes are necessary. For the present the Committee is prepared to await any recommendations which the Joint Committee on Legislation may make in this matter.

6.The main objection expressed in Report No. 32 to S.I. No. 331 of 1985 was that it purported to effect, in general and global terms, amendments of statutory instruments which were not identified. When dealing with the matter in Report No. 32 the Joint Committee was aware of only one statutory instrument that would have to be amended to meet Community obligations, namely, Rules for the Government of Prisons, 1947. The Committee has since been informed by the Department of Justice (see Appendix 3 to this Report) that a number of Garda Siochana Pensions Orders differentiate between men and women in a manner conflicting with the Directive. The Committee is pleased to note that it is proposed to amend these orders individually although presumably they are covered by the global amendment effected by S.I. No. 331 of 1985. The necessary changes to meet Community requirements have already been made administratively.

Winter Time Order, 1986 (S.I. No. 45 of 1986)

7.The Joint Committee wishes to raise one minor point in relation to the explanatory note appended to this instrument. The order varies the periods of winter time and consequently summer time for the years 1986, 1987 and 1988 and, as the explanatory note indicates, “gives effect to an EEC Directive concerning summer time in EEC Member States”. The Committee consider that it would facilitate examination of such instruments if the EEC Directive in question were identified in the explanatory note and, as it notes that the Minister for Justice would have no objection to including such a reference in the future (see Appendix 4 to this Report) it believes that this should be done.

European Communities (Cosmetic Products) Regulations, 1986 (S.I. No. 35 of 1986).

8.These regulations made by the Minister for Health amend regulations made in 1982 and 1984 and all these regulations are concerned with giving effect to various Council Directives relating to Cosmetic Products. The principal regulations are those made in 1984 and these revoked earlier regulations made in 1979 and 1982. As far as enforcement of the provisions of all the regulations are concerned the responsibility in the case of some provisions is imposed on officers of the Minister and the Health Boards and their officers and in the case of other provisions on officers of the Minister for Industry and Commerce. The assent of the latter Minister to the involvement of his officers was signified by his signature of the 1979 regulations but the subsequent instruments were signed by the Minister for Health alone. The Joint Committee raised this matter with the Department of Health and the relevant correspondence is reproduced in Appendix 5 to this Report.

9.It will be noted that the legal advice available to the Department is that statutory instruments made under section 3 of the European Communities Act, 1972 do not require the counter signature of a second Minister. The Joint Committee fully accepts this position and is satisfied that the wording of section 3 of the 1972 Act makes it clear that regulations thereunder may be made by any one Minister. It notes that the practical enforcement of the relevant provisions by officers of the Minister for Industry and Commerce is not affected.

European Communities (Veterinary Medicinal Products) Regulations, 1986 [S.I. No. 22 of 1986]

10.These regulations made by the Minister for Health implement two EEC Directives relating to the Marketing and Manufacture of Veterinary Products. Regulation 14 of the Regulations read:-

“A fee shall be paid to the competent authority (i.e. National Drugs Advisory Board) in respect of an application for a product authorisation (required by a person marketing a relevant product) or a manufacturer’s licence (required by a manufacturer) made pursuant to these Regulations in accordance with such scales as the Minister for Health, with the consent of the Minister for Finance, may from time to time determine”

11.The European Communities Act, 1972 contains no specific authority enabling Ministers to prescribe fees by regulations made thereunder but section 3(2) thereof allows such regulations to “contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary for the purpose of the regulations”. The Joint Committee can accept that section 3 (2) permits the prescribing of fees in an appropriate case and it concedes that S.I. 22 of 1986 deals with such a case. Like its predecessor, however, it believes that the fees to be charged must be set out in the instrument. It cannot accept that the Act of 1972 permits a Minister to make regulations delegating to himself a power to fix fees administratively. Such power would in the Committee’s view require the specific authority of the Oireachtas delegated in unequivocal terms. When such authority has not been delegated it is not acceptable that Ministers should seek to evade parliamentary supervision of the amounts charged by way of fees under delegated legislation by assuming power to fix such fees administratively. This point has been made in several previous reports and accordingly the Department of Health was asked for an explanation of Regulation 14 of S.I. No. 22 of 1986. The Department’s explanation is set out in Appendix 6 to this Report.

12.The Department explains that the fees in this case have to be revised annually in accordance with the requirements of the Department of Finance but that a formula for revision has been approved by that Department by reference to which fees may be revised without obtaining specific sanction in each case. While this seems a sensible administrative arrangement it does not follow that it “avoids the necessity for formal amendment to the regulations by the Minister for Health every twelve months, countersigned by the Minister for Finance”. Firstly, no such counter signature by the Minister for Finance is necessary as the legal advice the Department has already received indicates (see Appendix 6 to this Report). Secondly the requirement that the Minister specify the precise fees to be charged arises from his obligations when acting as a delegate of the Oireachtas in exercising legislative powers and these cannot be affected by any arrangement between his Department and the Department of Finance. The Joint Committee proposes to give the Minister for Health an opportunity of reconsidering the position and trusts that he will agree to delete regulation 14 of S.I. No. 22 of 1986 and make new regulations prescribing the appropriate fees. The Joint Committee intends to pursue this matter with the Department of Health and will make a further report to the Houses on the matter in due course.

European Communities (International Carriage of Passengers) Regulations, 1985 [S.I. No. 369 of 1985]

13.These regulations which implement an agreement made by the EEC with certain third countries contain provisions for no less than nineteen different fees payable to the Minister for Communications for various authorisations and documents. The Joint Committee is pleased to see that the amount of each fee is specified in a Schedule to the Regulations and it commends the instrument to the Department of Health as an example to be followed in prescribing fees.

European Communities (Wildlife Act, 1976) (Amendment) Regulations, 1986 [S.I. No. 254 of 1986]

14.In Report No. 31 of 8 July 1986 the Joint Committee was critical of the European Communities (Wildlife Act, 1976) (Amendment) Regulations, 1985 [S.I. No. 397 of 1985] because inter alia and for the purpose of implementing Council Directive No. 79/409/EEC those regulations made twelve species of wild birds protected species under the Wildlife Act, 1976. The evidence available to the Joint Committee was that the wild birds in question were a positive source of danger to agricultural interests and other wild birds and game stocks and that the 1985 regulations would make impossible the control called for by the density of the population of those species in this country. The 1986 regulations now under consideration amend the law so as to enable eleven of the species in question to be captured or killed by specified methods whenever a declaration has been made by the Minister for Tourism, Fisheries and Forestry that such is necessary to prevent disease or injury. Such a declaration was made by the Minister on 21 July 1986 covering the year ending 20 July 1986. The Joint Committee is very pleased that the Minister has made these regulations which also enable wild birds to be controlled in the interests of air safety and it is fully satisfied that the necessity for the Regulations has been established.

European Communities (Diseases of Animals Acts, 1966 and 1979 Orders) (General Authorisations for Imports) Regulations, 1985 [S.I. No. 365 of 1985]

15.These regulations enable the Minister for Agriculture to issue a General Authorisation for the importation of agricultural products whenever there is in force an order made under section 10 of the Diseases of Animals Act, 1966 prohibiting the importation of such goods except under licence. The intention apparently is to issue such General Authorisations in respect of products from countries where animal health is regarded as comparable with this country’s while retaining the requirements of a specific licence where imports might create a health risk. The Joint Committee has no objection to the regulations which it sees as arising from the requirements of the EEC Treaty relating to the free movement of goods. Correspondence relating to these Regulations with the Department of Agriculture is reproduced in Appendix 7 to this report.

European Communities (Freedom to Provide Services) (Lawyers) (Amendment) Regulations, 1986 [S.I. No. 226 of 1986].

16.These regulations extend to Spanish and Portuguese lawyers the freedom to supply services in this country which is already enjoyed by lawyers from other Member States. There are now two current regulations dealing with the freedom of lawyers to provide services in this country both of which amend the Solicitors Act, 1954. In its Fiftieth Report (Prl. 8085) of 30th May, 1979 the then Joint Committee in commenting on the original regulations made in 1979 expressed the view that it was undesirable that amendments of statutes like the Solicitors Act, 1954 should remain indefinitely in subordinate legislation. This Committee has been informed by the Department of Justice (see Appendix 8 ) that “proposals are currently on hand to provide for various amendments to the Solicitors Act” and that “the question of incorporating in that legislation the amendment to the Solicitors Act, 1954 which was effected by Regulations S.I. No. 58 of 1979 will be considered”. The Joint Committee cannot conceive of any reasonable objection to incorporating the provisions of the two existing regulations in any new amending legislation and it trusts that this will be done.

________________________

Joe Walsh T.D.

Acting Chairman

10 December, 1986.

(1) See Appendix 1.