Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael) | Oireachtas source

Perhaps the Senator would like me to respond. I will respond to each of the points in turn. On the list of infringements, I would be greatly pleased for the committee to have a substantive involvement in the detail of the directives and the transposition process, as well as the broad powers of the committee, which is what we have discussed to date. There is a substantive body of substantive work which I am trying to get through with the different Departments. I would greatly welcome the committee's assistance on that work. I will give the committee a briefing in relation to that. For the committee's information, I am trying to manage this process in a close way. I will meet the Departments again in early September to go through what the status of everything is, having sent the different closure notices or made the different efforts to close the files.

I have concerns about the duration and the approach taken by Departments going back some time. There are a number of files in respect of which I can see why we are incurring fines. I can see the scale of the substantive work, the investment and the change that are necessary. I understand that. I can also see the scale of the efforts being made by some Departments to have those resolved. There is a process to close that out. There are others which are dependent on other pieces of legislation, such as the planning Bill, being completed before they can be completed. They are all at different levels of seriousness or of investment required. It is well worth going through them in a substantive way so the committee can fully understand, have the same information and be aware of the same concerns as I am. They are not all the same - that is basically what I am saying. I am trying to find ways to manage them to reduce the list as much as possible, in particular before the Presidency. I would greatly welcome the committee's assistance with that.

I assure Senator McDowell that even though many things in this world are "grotesque", the transposition of EU directives is not one of them. It is not "grotesque", "gross" or "bizarre". It is an established legislative process within an established parliamentary democracy with a competent Attorney General. Of course the Senator was also a competent Attorney General. I agree with the Senator on some points and I disagree on others. A White Paper or Green Paper process is a policy-based process, essentially within a Department. It is not possible to equivocate that in any way with the development of legislation, which is, of course, of completely different seriousness and import in a legislature, and the nature of legal advice attached to that. It is also the case that a Bill goes through an iterative process. Forget about statutory instruments and general schemes. In the old course of things, before we did that and before pre-legislative scrutiny - and indeed since we have had pre-legislative scrutiny - a Bill goes through an iterative back-and-forth process between the Department and the OPC. That exchange has always been subject to legal professional privilege. The reason for that is that it involves teasing out what is possible within the concepts, the desire of the policy, the constraints of the legal structure or the read-across to other legislation because of policy positions adopted by a single Department and how that potentially reads across other legislation. As the Senator is more aware than I am, issues are always thrown up in that process and always have to be teased out between the Department, the OPC and the adviser. That back and forth is necessarily privileged. It is not correct to say that one side is privileged and the other side must not be; firstly because that is not how it works in respect of primary legislation and secondly because it does not allow for that iterative process to happen in a genuine and open way, intellectually, between the two different entities. If one side is constrained in genuinely trying to think through something - I am talking about this in terms of the development of primary legislation - and work out what the parameters can and may be, and is constrained by being aware that they would constantly have to publish that also, it is not a real iterative process. At some point, the Government has to be able to do that. It is the same with the draft legislative process in respect of statutory instruments.