Committee Reports > List of Committees > Joint > 1986 > Committee on Legislation > Report - Statutory Instruments [18]

JOINT COMMITTEE ON LEGISLATION

REPORT

Introduction

1.Under its terms of reference the Joint Committee is obliged “to examine and report to each House on any statutory instrument laid or laid in draft before either House, other than regulations made under the European Communities Act, 1972, and to recommend, where it considers that such action is warranted, whether the instrument should be annulled or amended”. As it is empowered to do, the Joint Committee appointed a Sub-Committee consisting of five of its Members, under the Chairmanship of Deputy Sean Calleary, to examine all statutory instruments or drafts thereof which are comprehended by its terms of reference.

2.In the course of the examination by the Sub-Committee of the statutory instruments laid or laid in draft before either House in the first two years since the appointment of the Joint Committee explanations were sought from the relevant Government Departments regarding a number of instruments or particular provisions thereof. These explanations were required where it appeared that the instrument took a form or contained particular provisions which may not have been in the contemplation of Members when the Bills for the parent Statutes were being considered by the Houses or where the purport of particular provisions or the implications of the instrument were unclear. In this Report the Joint Committee is drawing the attention of the Houses to twelve such instruments and recommending remedial action in a number of instances. The correspondence relating to these instruments is reproduced in Appendices I to XI of this Report.

3.On this the occasion of its first report on statutory instruments the Joint Committee wishes to acknowledge with gratitude its indebtedness to Deputy Calleary and the other Members of the Sub-Committee and to pay tribute to them for the substantial amount of work performed on the examination of statutory instruments in the past two years.

Temporary Release of Offenders (Fort Mitchel) Rules, 1985 [S.I. No. 103 of 1985]

4.As its title indicates this instrument deals with temporary releases of persons detained at Fort Mitchel on Spike Island, Cork. Section 2 of the Criminal Justice Act, 1960, as applied by section 4 of the Prisons Act, 1970 requires that such releases shall be subject to Rules made by the Minister for Justice and the Houses of the Oireachtas has retained in section 2 (2) of the 1960 Act the power to annul those Rules.

5.The instrument empowers the Governor or his deputy in charge to grant temporary releases subject to any condition he may impose and subject to any directions of the Minister, which may relate to releases generally, a particular release or the release of any category or class of persons. Apart from the conditions which may be imposed, subject to ministerial directions, at the Governor’s discretion, the 1985 Rules specify two particular conditions, namely, that the person released keep the peace and be of good behaviour and that he be of sober habits.

6. The Joint Committee considers that the net effect of the Rules is to delegate to the administrative authorities the power to determine the conditions of release. These conditions are thereby removed from parliamentary control in as much as the power of the Houses to annul the Rules becomes ineffective as an instrument of control over those conditions. Accordingly the Department of Justice was asked for comments and these are to be found in Appendix I to this Report.

7. In summary the Department’s view is that it is not “feasible to specify in Statutory Rules the precise detailed directions that would be appropriate in any particular case” and that the Rules provide the flexibility if temporary release is to be operated to best effect.

8.Whatever about directions relating to a particular release, the Joint Committee is not convinced that directions relating to releases generally or to the release of a category or class of person cannot be set out in the Rules. Moreover it believes that it should be possible to frame guidelines for inclusion in the Rules within which the Governor would be required to exercise his discretion in relation to a particular release or a series of releases. If this were done the Houses would be in a position to determine whether to exercise their power of annulment in light of the actual conditions of release in operation. This does not amount to the Minister having to obtain parliamentary approval of the conditions imposed in particular cases as the Department appears to suggest.

9.The Joint Committee can appreciate that the Rules as drafted provide a flexibility that is attractive to the administrative authorities. However in the Committee’s view if such flexibility is desirable authority for it should be sought from the Oireachtas. Provision similar to Rules 3, 4 and 5 of the 1985 Rules could and should have been included in the Bill for the parent statute to enable the Houses to decide if the flexibility desired should be conceded.

10.The Joint Committee has decided that the Department of Justice should be given an opportunity of re-examining the position. In the Committee’s opinion if the Rules cannot be amended to include the matters which the Minister has dealt with or contemplates dealing with by directives he should bring before the Houses proposals for legislation to give him the authority he is assuming in the Rules.

Criminal Justice (Community Service) Regulations, 1984 [S.I. No. 325 of 1984]

11.These Regulations which deal with the operation of Community Service Orders provide inter alia that (a) “any body of persons” on whose behalf work under an Order is to be carried out are adequately insured against liability in respect of injury, loss or damage caused to or by the offender carrying out the work and (b) work performed is to be of benefit to the community or to an individual or “group of individuals in need”. The Joint Committee was concerned that these provisions might be held to make individuals in need liable for insurance costs. Accordingly it sought elucidation from the Department of Justice. The relevant correspondence is reproduced in Appendix II.

12.The Joint Committee is pleased to note that where work is carried out on the basis that it is of benefit to a needy individual or a group of individuals in need the State will carry the risks. It accepts that in interpreting the Regulations it is open to distinguish between a body of persons on whose behalf work is carried out and individuals who benefit from work carried out.

District Court (Fees) Order, 1983 [S.I. No. 207 of 1983] and Supreme Court and High Court (Fees) Order, 1983 [S.I. No. 209 of 1983]

13. These Orders deal with court fees and the Joint Committee raised with the Department of Justice the provisions therein exempting certain proceedings and the filing of certain documents from the obligation to pay fees. Copies of the correspondence are contained in Appendix III to this Report.

14.It will be noted from the Department’s minute that these Orders have been replaced by later Orders containing similar provisions and the Orders themselves replaced earlier instruments also containing similar provisions.

15.The Orders were made by the Minister for Justice with the consent of the Minister for Finance under the powers conferred on him by section 65 of the Courts of Justice Act, 1936, subsection (1) of which reads:-

“It shall be lawful for the Minister for Justice, by order made with the consent of the Minister for Finance to prescribe and from time to time as occasion requires vary or otherwise revise the fees to be charged in the several offices established by the Court Officers Act, 1926 (No. 27 of 1926) as amended by subsequent enactments (including this Act), and the persons by whom and the occasions on which such fees are to be paid and the Officers by whom and the manner in which such losses are to be collected”.

Subsection (2) of the section provides specifically for the making of Ministerial Orders providing for general or special exemptions for property of wards of courts from fees chargeable. In light of these statutory provisions the Joint Committee asked the Department to comment on the exemptions provided for in the Orders.

16.The Department considers that if the objections expressed by the Joint Committee are valid the exemptions are ultra vires the Minister’s powers and therefore invalid. Apparently it accepts that there is in this respect a “degree of uncertainty” which can only be resolved by a Court but it argues that “subsection (1) does not, on the face, require that fees be charged in all cases and accordingly the presumption, unless displaced, must be that the exemptions are permissible”.

17.The Joint Committee is not concerned with the legal question of vires as such. Its approach is to ask whether Members of the Houses of the Oireachtas, when considering the relevant Bill, could have reasonably foreseen that they were authorising the Minister to concede exemptions of the type provided for. It is true that section 65(1) of the 1936 Act does not oblige the Minister to prescribe fees but the point at issue is whether when he has prescribed fees, as he has done, he may provide for exemptions from those fees as he sees fit. In the Committee’s view there was little purpose in the Oireachtas giving the Minister specific power to grant exemptions for wards of court if it intended giving him power to prescribe exemptions in any case he thought fit.

18.While the Joint Committee considers that the Minister has made an unexpected use of the power conferred on him it can see that on the merits a reasonable case can be made for the exemptions. It notes, moreover, that Orders providing for such exemptions have been made over a number of years and it has therefore decided not to recommend annulment or amendment of the Orders currently in force which were made in 1984 but it considers that the opportunity of regularising the position should be taken when next appropriate legislative proposals are submitted to the Houses of the Oireachtas. The Committee is, however, concerned at the attitude expressed by the Department of Justice if it is interpreting it correctly. It appears that the Department considers that if there is a doubt as to whether or not a particular provision is intra vires the Minister’s powers, he may, nevertheless, include it in a statutory instrument as long as a Court has not made an authoritative pronouncement in the matter. The Committee is strongly of opinion that this attitude should not be accepted by the Houses of the Oireachtas. In its view if the instrument making authority is in doubt about the extent of its power its duty is to have due regard to the Constitutional prerogatives of the Oireachtas, and to submit proposals for clarifying legislation to the Houses. The Committee will not hesitate recommending annulment of any instrument which is made when the authority making it appears doubtful as to whether or not it has the power to do so.

Wildlife Act, 1976 (Birds of Prey) Regulations, 1984 [S.I. No. 8 of 1984]

19.These Regulations make the keeping and use of birds of prey in falconry subject to licensing control and lay down the conditions under which a bird of prey may be maintained. The Joint Committee asked the Department of Fisheries and Forestry to indicate whether there was any limitation on the Minister’s power to revoke a licence and as to the manner in which the Minister exercises his power to require the disposal of a bird when a licence is cancelled. The correspondence with the Department is reproduced in Appendix IV to this Report.

20.The Department states that the revocation of a licence is entirely at the discretion of the Minister and having regard to section 9 of the Wildlife Act, 1976, the Joint Committee accepts that, subject to the discretion being exercised so as to further the purposes of the Act, the Minister has a discretion to revoke a licence.

21.As regards the disposal of birds when a licence is revoked the Regulations provide that the disposal shall be “in such manner as the Minister shall specify in writing”. The Joint Committee considers it objectionable that an unrestricted discretionery power of this kind should originate in subordinate legislation. If such is necessary the Committee believes that it ought to be conferred explicitly by the parent statute. The Committee notes that as yet the Minister has not had occasion to require the disposal of a bird of prey but that if he had to do he would, in directing the manner of disposal, have due regard “to (i) the welfare of the individual specimen and (ii) the conservation of species”. The Committee sees no good reason why the Minister should not be obliged as a matter of law to have due regard to these considerations and it recommends that the Regulations be amended so to provide.

Authorised Coursing Meetings (Exemption from Levy) Regulations, 1983 [S.I. No. 345 of 1983]

22.These Regulations made by Bord na gCon provide that “every course bet entered into by a licensed bookmaker at every authorised coursing meeting shall be exempt as respects the levies provided for by the Greyhound Industry Act, 1958 (s.i. no. 12 of 1958)”. Section 32(1) of the 1958 Act provides for the payment of levies on course bets by licensed bookmakers to Bord na gCon. As it was not clear to the Joint Committee what precise statutory authority Bord na gCon was relying on for making the Regulations it raised the matter with the Board through the Department of Agriculture. Copies of the correspondence are reproduced in Appendix V to this Report.

23.It appears from the Board’s reply that the Regulations arise from the definition of “course bet” in section 2(1) of the 1958 Act which is in the following terms:-

“‘course bet’ means -

(a)a bet entered into by a licensed bookmaker, during a greyhound race meeting held at a greyhound race track, on a greyhound race forming an item at that meeting,

(b)a bet entered into by a licensed bookmaker, during an authorised coursing meeting (not being a meeting declared by the Board by regulations to be exempted as respects the levies provided for by this Act), on an event forming an item at that meeting”.

It is the view of the Joint Committee that the foregoing enables the Board by regulations to declare a coursing meeting exempt as respects the levies provided for in section 32 of the Act. The effect of such declaration would appear to be that a bet entered into at such a meeting would not be a “course bet” for the purpose of section 32 and accordingly no levy would therefore be payable thereon. It does not seem to the Committee that the statutory provision relied upon enables regulations of the Board to exempt any “course bet” as such from the levy let alone all such bets which are comprehended by paragraph (b) of the definition. What the Regulations purport to do is to terminate the operation of section 32 as far as course bets as defined in the said paragraph (b) are concerned. The termination of section 32 in toto is within the competence of the Minister for Agriculture to effect by order made with the consent of the Minister for Finance. Accordingly the Committee proposes to ask the Department of Agriculture to consider the matter and to make its position known to the Committee in due course.

Poisons (Amendment) Regulations, 1984 [S.I. No. 349 of 1984]

24.These Regulations provide inter alia for deferring the labelling, packaging and colouring requirements of the Poisons Regulations, 1982 in respect of certain pesticides. The Joint Committee asked the Department of Health to explain the necessity for the deferral and copies of the relevant correspondence appear in Appendix VI to this Report.

25.It appears that it was decided to defer the provisions in question to enable the Poisons Council to re-examine the position in light of secondary legislation adopted by the European Economic Community. The Joint Committee considers this to be reasonable but points out that it would have been helpful had the position been explained in the Explanatory Note appended to the 1983 Regulations. Presumably new Regulations will be made in due course and it trusts that the Explanatory Note will then explain the EEC connection and that the citation of authority will contain an appropriate reference to any EEC secondary legislation that may be implemented by the new Regulations.

Control of Fishing for Mackerel Order, 1984 [S.I. No. 52 of 1984], Control of Fishing for Mackerel (No. 2) Order, 1984 [S.I. No. 260 of 1984] and Mackerel (Prohibition on Fishing) Order, 1985 [S.I. No. 124 of 1985]

26.It emerged from correspondence with the Department of Fisheries and Forestry (see Appendix VII) that these Orders contain the detailed rules for the utilisation of fishing quotas allocated to Ireland which are permitted to be made by Article 5(2) of Council Regulation (EEC) No. 170/83. No reference to the Council Regulation appears either in the instruments themselves or the explanatory notes appended thereto. Presumably the Department did not consider such necessary because the Orders do not implement any secondary legislation of the European Economic Community. While that may be strictly correct the Orders in question could not have been lawfully made but for the authority contained in Article 5(2) of Council Regulation (EEC) 170/83. In the Joint Committee’s view the Explanatory Notes should have contained an appropriate reference to the EEC Regulations. It is aware that the Joint Committee on the Secondary Legislation of the European Communities had made recommendations which are relevant in this connection and it trusts that these will be followed in the future.

Local Government (Officers) Regulations, 1983 [S.I. No. 263 of 1983]

27.These Regulations which deal with the suspension by local authorities of officers employed by them provides inter alia that a local authority may not pay “any remuneration” to an officer while he is suspended but that the authority, if it thinks fit, may make, with the consent of the Minister for the Environment, an ex-gratia payment to him. Any sum so paid is made repayable by the officer concerned and is not to reckon as salary or emolument for pension purposes. The Joint Committee asked the Department of the Environment by letter what statutory provision was considered to confer power on the Minister to authorise a local authority to make an ex-gratia payment to a suspended officer. Copies of the letter and the reply thereto appear in Appendix VIII to this Report.

28.The Department’s reply indicates that the Minister is relying for his authority on section 19 of the Local Government Act, 1941 as amended by section 14 of the Local Government Act, 1955. Section 19 of the 1941 Act enables the Minister to make regulations “determining remuneration” and section 14 of the 1955 Act enables the Regulations to provide for the imposition by local authorities on suspended officers of “the non-payment of remuneration, during the continuance of the suspension and, upon termination thereof, the forfeiture (in whole or in part), payment or disposal otherwise of the remuneration which would, but for the suspension, have been paid during the periods thereof”. According to the Department the provision in the Regulations relating to ex-gratia payment was made by the Minister under the foregoing statutory provisions “as part of the provisions relating to the question of an officer’s remuneration while under suspension”. The Joint Committee cannot accept this proposition since Article 9 of the Regulations makes it clear that an ex-gratia payment is not to be remuneration nor to have any of the incidents of remuneration. Accordingly the Committee considers that the Minister has in this instance made a use of his statutory power that would not have been reasonably in the contemplation of Members when the Bills for the parent statute were under consideration.

29.However the Joint Committee considers that it is reasonable that there should be provision for making some payments to officers under suspension and that the Minister should have the power which he has in fact exercised. For that reason it is not recommending that the Regulations be amended. It does, however, consider that the matter should be regularised when the next proposals for related legislation are before the Houses.

Medical Preparations (Licensing, Advertisement and Sale) Regulations, 1984 [S.I. No. 210 of 1984]

30.As will be seen from the correspondence reproduced in Appendix IX to this Report the Joint Committee raised two points with the Department of Health in connection with this instrument. One of these concerns Article 10 of the Regulations which provides for a charge to be paid to the Minister for Health by an applicant for a product authorisation in accordance with a scale determined by the Minister from time to time with the consent of the Minister for Finance.

31.The Joint Committee notes that the Joint Committee on the Secondary Legislation of the European Communities has already on a number of occasions drawn attention to the objectionable features of allowing Ministers to assume power to fix the amount of fees and charges administratively. When the amount of the fee is specified in Regulations it remains subject to parliamentary control and any Member dissatisfied with the amount of the fee can move to annul the instrument. When fees are fixed administratively that control is lost. The Joint Committee considers that the Houses should not allow their control to be eroded merely because the Departments of Health and Finance have reached a mutually convenient arrangement. Accordingly it recommends that the Regulations under reference be amended by the deletion of Article 10 and its replacement by a provision setting out the scale of fees in operation.

32.The other point raised by the Joint Committee concerned the relationship of the Regulations with EEC legislation. The Committee notes that the Regulations which deal with both proprietary and non-proprietary medicines replace the European Communities (Proprietary Medicinal Products) Regulations, 1975 insofar as proprietary medicines are concerned. For the reasons already given the Committee considers that this fact should have been mentioned in the Explanatory Note appended to the Regulations.

Vocational Education Committees (Allowances to Members) (Amendment) Rules, 1984 [S.I. No. 60 of 1984]

33.These Rules provide for increases in the allowances payable to members of county vocational education committees and approved sub-committees in respect of attendance at committee meetings. The Rules were made by the Minister for Education on 8th March, 1984, with retrospective effect from 1st September, 1983.

34. Over the years parliamentary Committees dealing with statutory instruments have taken the view that instruments made with retrospective effect are objectionable unless the parent statute specifically authorises the retrospection. The Joint Committee shares this view and believes that when the Houses are being asked to delegate legislative power Members should be left in no doubt when it is intended that the powers delegated are to be exercised with retrospective effect.

35.The Department of Education argues (see Appendix X) that the statutory power contained in section 6 (4) of the Vocational Education (Amendment) Act, 1947 as amended by section 5 of the Vocational Education (Amendment) Act, 1962 justifies the retrospection. The Joint Committee cannot agree. In its view retrospection is permitted only where the parent statute explicitly so provides.

36.The Joint Committee notes that the purpose of the retrospection was to keep members of vocational education committees in line with members of local authorities. The Committee agrees that this is not unreasonable but considers that if it can only be achieved by statutory instruments operating retrospectively the specific sanction of the Oireachtas should be obtained. It suggests that this be done when next appropriate legislative proposals are before the Houses.

Oireachtas (Allowances to Members) (Travelling Facilities) (Amendment) Regulations, 1983 (S.I. No. 341 of 1983)

37.These Regulations which revise the day allowance and the motor mileage allowance payable to Members of the Oireachtas provide another instance of a statutory instrument being made with retrospective effect where there is no specific authority for the retrospection in the parent statute.

38. According to the Department of the Public Service (see Appendix XI) it has been the practice to make Regulations of this kind with retrospective effect. For the reasons already given the Joint Committee considers that this fact makes it all the more necessary to obtain the necessary sanction of the Oireachtas at the first opportunity when appropriate legislative proposals are being considered by the Houses.