Mark Daly (Fianna Fail)
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I welcome the Minister of State to this meeting of the Seanad Select Committee on EU Scrutiny and Transparency and thank him for giving us time today to go through some of the issues related to this committee, whose job is to ensure the citizens of Ireland and their public representatives - TDs and Senators - have sight of EU legislation that is added to by Government Departments and before that legislation is signed into Irish law. Anois, an tAire Stáit, Deputy Thomas Byrne. Thank you for being here. You are most welcome.

Thomas Byrne (Meath East, Fianna Fail)
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Go raibh maith agat, a Chathaoirligh. Fáiltím roimh an deis teacht os comhair an choiste seo arís. Nuair a bhíos anseo an uair dheireanach, ar an 17 Feabhra, leag mé amach seasamh an Rialtais ar dréacht ionstraimí reachtúla a chur ar fáil don choiste agus gheall mé céimeanna sonracha a ghlacadh chun comhlíonadh na Ranna a fheabhsú. Tá áthas orm dul chun cinn inbhraite a thuairisciú ó shin i leith. Tacaíonn an Rialtas go hiomlán le hobair an choiste seo, ní hamháin gur ábhar nós imeachta é maoirseacht pharlaiminteach éifeachtach ar oibleagáidí an Aontais Eorpaigh na hÉireann, is riachtanas bunreachtúil agus daonlathach é chomh maith. Soláthraíonn an coiste seo ciseal luachmhar grinnscrúdaithe agus maoirseachta nár cleachtadh roimhe seo.

Mar a thuigeann na comhaltaí go léir, ní mór an próiseas seo a dhéanamh i gcomhairle leis an Ard-Aighne, agus ní mór dó feidhmiú laistigh de na bparaiméadair dhlíthiúla faoina bhfeidhmíonn an gealltanas sin. Scríobh rúnaíocht an choiste chuig na Ranna go luath i mí Eanáir ag lorg dréacht le treoracha atá le trasuí go dtí tús mhí Lúnasa 2026. Go dtí inniu, tá dréachtaí agus nótaí faisnéise curtha ar fáil do naoi gcinn de na 13 threoir ar gá iad a thrasuí sa tréimhse. Tá trí threoir laistigh de chúram na Roinne Aeráide, Fuinnimh agus Comhshaoil, agus ceann amháin don Roinn Dlí agus Cirt, Gnóthaí Baile agus Imirce atá fós gan réiteach.

Táim i mbun oibre go díreach leis na Ranna lena mbaineann agus spreag mé na Ranna ábhartha chun dul i mbun oibre leis an gcoiste seo maidir leis na treoracha atá gan réiteach fós. Aithním, i gcás treoracha atá le teacht sa chéad leath de 2026, go raibh an fhuinneog sholáthair sé mhí comhbhrúite go struchtúrtha ón tús, toisc nár thosaigh rannpháirtíocht fhoirmiúil an choiste leis na Ranna maidir le treoracha 2026 go dtí 6 Eanáir. Ní tharlóidh an staid sin arís. Ó mhí Iúil 2026 ar aghaidh, ag an am céanna le tús Uachtaránacht Aontas Eorpach na hÉireann, is é an riachtanas sé mhí an caighdeán oibríochta agus tabharfaidh mé é sin ar na Ranna. Tá sé sin soiléirithe agam do gach comhghleacaí Aire i scríbhinn.

Is é seasamh an Rialtais, atá bunaithe ar chomhairle fhoirmiúil an Ard-Aighne agus ar chinneadh an Rialtais i mí Iúil 2022, gur féidir le Ranna agus gur cheart dóibh an chéad dréacht de na rialacháin thrasuímh atá beartaithe, nó na treoracha tosaigh ón OPC, a sholáthar don choiste seo. Léiríonn na hábhair seo beartas substainteach na Roinne. Féadfaidh an coiste iad a scrúdú agus a fhoilsiú. Seasann an gealltanas sin. Tá dréachtaí ina dhiaidh sin a mhalartaítear idir Ranna agus oifig na ndréachtóirí parlaiminte faoi réir pribhléid ghairmiúil dlí. Ullmhaíonn an tArd-Aighne dréachtaí ón OPC ina cháil mar chomhairleoir dlí don Rialtas faoi Airteagal 30 den Bhunreacht. Is cineál comhairle dlí gach athrá agus tá pribhléid orthu dá réir. Áirítear leis seo an dréacht stampáilte deiridh roimh shíniú an Aire. Tá a fhios agam go bhfuil comhaltaí ag argóint gur féidir pribhléid a tharscaoileadh. Tá sin ceart ó thaobh an dlí de agus féadfaidh Airí aonair pribhléid a tharscaoileadh i gcás ar leith ar fhíricí ionstraim shonrach. Níl fáil ar tharscaoileadh ginearálta uathoibríoch mar bheartas buan. Chuirfeadh sé sin isteach go díreach ar ról bunreachtúil an Ard-Aighne agus leagfadh sé fasach le himpleachtaí a shínfeadh i bhfad níos sia ná trasuíomh threoracha an Aontais Eorpaigh. Ní céim é sin gur féidir leis an Rialtas, ná ar chóir dó, a ghlacadh go haontaobhach. Ar nóta praiticiúil, bheadh gá le próiseas dréachtaithe an OPC ar fad a bheith críochnaithe sé mhí roimh ré mar gheall ar an togra chun ceanglas a chur i bhfeidhm an dréacht réamh-shínithe deiridh a sholáthar sé mhí roimh an spriocdháta trasuímh, rud nach cosúil a bheith indéanta.

Tá feidhmíocht trasuímh fhoriomlán na hÉireann i measc na gceann is láidre san Aontas Eorpach. Bíonn sí i gcónaí sa tríú cuid is airde de na ballstáit, ach ní bheimid réchúiseach maidir leis sin. Tá an tionscnamh trédhearcachta a sheol mé ar 17 Feabhra ag foilsiú sceideal iomlán na dtreoracha atá le trasuí agus imeachtaí sáraithe i gcoinne na hÉireann ar shuíomh gréasáin na Roinne i bhfíor-am. Creidim gur athraigh sé sin an timpeallacht chuntasachta. Bíonn an fhaisnéis sin le feiceáil anois ag an Oireachtas, ag an tsochaí shibhialta agus ag an bpobal ginearálta ar bhonn leanúnach.

Tosóidh Uachtaránacht na hÉireann ar Chomhairle an Aontais Eorpaigh ar 1 Iúil, sé seachtain ón lá inniu. Cuireann an Uachtaránacht dualgas ar leith ar Éirinn na caighdeáin is airde maoirseachta parlaiminte agus comhlíonadh reachtaíochta a léiriú. Ba mhaith liom a chinntiú, nuair a thosóidh an Uachtaránacht, go mbeidh an creat le haghaidh soláthair dréachtaí ábhartha ag feidhmiú mar a leagadh amach é. Ciallaíonn sé seo go mbeadh Ranna ag soláthar ábhar in am trátha, go mbeadh an coiste seo ag déanamh grinnscrúdú orthu go héifeachtach, agus go mbeadh dóthain ama ag coistí earnála comhpháirteacha ábhartha chun a gcion a dhéanamh. Is cuspóir indéanta é sin agus is é sin an ceann a bhfuilim tiomanta a sheachadadh. Táim ag súil le malartú substaintiúil leis an gcoiste inniu. Tá áthas orm aon cheisteanna ó Sheanadóirí a fhreagairt.

Mark Daly (Fianna Fail)
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Gabhaim buíochas leis an Aire Stáit. I will begin. Based on the version of the speech that we got, the Government is not willing to give Senators, TDs or Oireachtas committees draft EU laws that have been added to by Government Departments. Nobody is to be allowed see those laws that are just about to be signed into Irish law before they are signed.

Thomas Byrne (Meath East, Fianna Fail)
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What we have said is that we cannot provide them six months in advance, which is-----

Mark Daly (Fianna Fail)
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I just want to be clear. The version of the speech I have here says that the first draft will be given but that all other drafts are privileged, including the final stamped draft prior to ministerial signature. The legislation that has come from Europe that has been added to by a Government Department and that is just about to be signed into Irish law will not be seen by any citizen of Ireland.

Thomas Byrne (Meath East, Fianna Fail)
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If it is added to, it will have to go through as primary legislation, so it will be seen.

Mark Daly (Fianna Fail)
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We dealt with the human-----

Thomas Byrne (Meath East, Fianna Fail)
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If there is an addition to the EU law, it has to come through primary legislation.

Mark Daly (Fianna Fail)
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No, I want to be clear.

Thomas Byrne (Meath East, Fianna Fail)
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It will have first-----

Mark Daly (Fianna Fail)
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I am sorry; I want to be clear. We dealt with the issue of organ donation here in the Seanad. The Department of Health added to that EU directive, identifying who is responsible for oversight and who designates the hospitals. That was not done through primary legislation. It was done by statutory instrument. It was described as the worst transposition of the directive in Europe. It was an issue of life and death. With regard to other legislation like that, which accounts for about 60% of all the legislation that comes into effect in Ireland every year, according to the speech we got, the citizens of Ireland will not see the version that is about to become Irish law. That EU health legislation was added to by the Department of Health, which designated hospitals. It was decided that both HIQA and the HSE would both be in charge, which meant that nobody was in charge and it had to be revised. The important part of this committee's work on EU scrutiny and transparency is that the citizens of Ireland know what legislation is about to brought in on their behalf and signed into Irish law, having been added to by Government Departments. From this speech, it seems the final draft that is about to be signed by the Minister is not going to be seen by any citizen of Ireland, by the Oireachtas committee that is the line committee, or by TDs and Senators. Is that correct?

Thomas Byrne (Meath East, Fianna Fail)
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I have discussed this with the Cathaoirleach on numerous occasions. It would be helpful to go through the legislative process of the European Union. In the first instance-----

Mark Daly (Fianna Fail)
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No, I am sorry.

Thomas Byrne (Meath East, Fianna Fail)
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No, no.

Mark Daly (Fianna Fail)
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Minister of State-----

Thomas Byrne (Meath East, Fianna Fail)
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No, I want-----

Mark Daly (Fianna Fail)
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I am just-----

Thomas Byrne (Meath East, Fianna Fail)
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I will answer the question in the way I want to answer it.

Mark Daly (Fianna Fail)
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We will come back to the question again.

Thomas Byrne (Meath East, Fianna Fail)
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I am going to answer the question fully. When laws are proposed in the European Union, it is the European Commission that proposes them. All proposals from the European Commission are sent to the European Parliament and the Council of Ministers, because they are the legislative bodies that will have to approve them. They are also sent to every Oireachtas joint committee. Departments send them to the Oireachtas committees. The committees have all of those proposals at an early stage. There are also provisions within the Lisbon treaty that allow national parliaments to get involved at that stage, before anyone has even debated the laws in the Parliament.

There are two forms of European law: directives and regulations. Regulations have direct effect. These can only be passed by the European Parliament and all of the governments working together. There is a public process around that. Many of our MEPs are very active in debating these issues in the public forums, in the media, in the Parliament and so on. When a regulation comes in, no further action is required from Government Departments. It is law in Ireland immediately upon enactment, in accordance with the terms of the specific regulation.

Directives are in a slightly different position but they are legislated for in the same way. The Commission makes proposals, which are sent to the governments and to the Parliament. The Government here sends them to the Oireachtas committees at that point. They are then debated in the European Parliament and at the Council of Ministers. In fact, most of our work in the Council of Ministers during the Presidency will be negotiating these laws and debating them with the European Parliament. They are then passed. Those directives then have to be implemented in national law. There are two ways to do that. One is through primary legislation. Many directives go through the whole hog of the Dáil and Seanad processes, where they are debated.

A classic example is the GDPR legislation, which was a European directive but was passed here through primary legislation. We are obliged to implement those directives, usually within a certain timeframe. As Minister of State with responsibility for European affairs, that is what I am most concerned about. We have to implement these pieces of legislation. The most routine directives, where there are no choices to be made and no policy discretion for the Government, are often implemented by regulation. They have already been debated in national parliaments and provided to the Oireachtas by the Government. They have already been the subject of public votes. We saw an example last week with regard to nudification apps. That was an example of EU law being passed that is relevant to the public, which they saw passed by the European Parliament. When the Government has to implement directives through regulation rather than primary legislation, it signs regulations to implement those directives. It is legally obliged to do that under our Constitution. That is how the EU system works. As the Cathaoirleach will be well aware, having brought forward a motion in this respect, the traditional practice is to lay regulations before the House, subsequent to which either House can annul them under the terms of the European Communities Act.

We have brought in a further procedure on top of all of this because of the representations of the Cathaoirleach and the Seanad. We now provide the first draft of statutory instruments to the Seanad six months in advance of the deadline. The Seanad has its own procedures by which it sends such drafts to the various sectoral committees. We are fully co-operating with that. That is a Government decision. It is not required under the Constitution. Ministers are accountable to the Dáil. The Dáil can ask for this at any time, as can the joint committees. The Seanad is a legislative body. To assist the Seanad and accepting the argument it made that we needed more scrutiny, the Government, which I am here to represent, has decided to provide these drafts six months in advance. The Seanad will have them. As I understand it, under the Seanad's own Standing Orders, it will provide these to the sectoral committees.

In the meantime, because of the democratic processes in Europe, often involving our own MEPs and our Government, we are required to implement legislation by a particular date. We have to do that come hell or high water. That has worked for us in Europe and it is legally required. The Seanad still has the option to vote to annul a regulation subsequent to it being laid before the Houses. That is a well-established process, in which the Cathaoirleach and I were engaged more than ten years ago. I am just trying to explain the Government decision on this. I really must push back hard against the idea that there is law coming in that is being kept secret because that is absolutely not the case.

Mark Daly (Fianna Fail)
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Will the Minister of State confirm that nobody is allowed to see the final draft the Minister is to sign into Irish law? Neither TDs, Senators nor Oireachtas committees are allowed to see the final draft before it is signed by the Minister.

Thomas Byrne (Meath East, Fianna Fail)
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There is a distinction to be made between primary legislation and secondary legislation.

Mark Daly (Fianna Fail)
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I am sorry. I understand the distinction and the Minister of State explained it very well. This committee's Standing Orders specify that it is "the draft Statutory Instrument due to be signed by the Minister" we are supposed to be-----

Thomas Byrne (Meath East, Fianna Fail)
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There is a practice in respect of all statutory instruments, not just those arising from the European Communities Act, which this committee is most focused on. There are quite a few that do not fall under my remit or the remit of this committee. Ministers sign statutory instruments all the time. There is a long-standing legislative procedure whereby either House of the Oireachtas can annul such instruments subsequently. The idea that something is being kept secret is absolutely wrong.

Mark Daly (Fianna Fail)
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If nobody is allowed to see the instrument the Minister is about to sign in advance-----

Thomas Byrne (Meath East, Fianna Fail)
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The law that we-----

Mark Daly (Fianna Fail)
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I just want to be clear-----

Thomas Byrne (Meath East, Fianna Fail)
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The Cathaoirleach is dressing this up in terms that are completely incorrect.

Mark Daly (Fianna Fail)
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I did not say the word "secret". What I said is that the remit of this committee, which is called the Committee on EU Scrutiny and Transparency, is to examine laws that are about to be signed by a Minister. That means the exact law, word for word and line for line, should be made available for TDs, Senators, Oireachtas committees and the citizens of Ireland to see before it is signed into Irish law. The first draft is the first draft. That is provided six months out. It will change a lot as it makes its way through. The remit of this committee is to see the one the Minister is about to sign. The Oireachtas committees should see the laws the Minister is about to sign, as should TDs, Senators and the citizens of Ireland. However, in his speech - I am checking because I want to be 100% sure I am not misquoting him - the Minister of State said:

drafts are prepared by the Attorney General, in his capacity as legal adviser to the Government, under Article 30 of the Constitution – each iteration constitutes a form of legal advice and is privileged on that basis. This includes the final stamped draft prior to Ministerial signature.

This means that legal privilege applies to the final draft and, as such, it will not be made available to the TDs, Senators or citizens of Ireland before the Minister signs it.

Thomas Byrne (Meath East, Fianna Fail)
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Where a Minister is to sign secondary legislation, in this case, it will have gone through a public process with the first draft being provided. In any event, the substantive part of the legislation will already have been debated extensively and publicly in the European Parliament, in the Council and potentially in Oireachtas committees if they were to use the powers they have. I am not sure a committee has ever used these powers, which were provided under the Lisbon treaty. If the Seanad or the Dáil does not like what the Minister has done, they have long-standing powers of annulment.

The Seanad's powers are very carefully set out in the Constitution. A Minister is accountable to the Dáil and to joint committees. A Minister can be questioned on these matters in Dáil Éireann at any time. I am quite sure that, if a Minister were to come to the Seanad, he or she would do the Seanad the courtesy of answering a question on a specific issue by way of a Commencement matter. I am here on behalf of the Government to facilitate a Government decision. I have really worked hard to co-operate with the Cathaoirleach and with the Seanad over the last number of years, including when I was previously a Minister of State. We want to work in good faith within the strictures of the Constitution and of the Attorney General's advice. The suggestion that the details of laws are being withheld from the public before they are enacted is a gross mischaracterisation of the situation.

Mark Daly (Fianna Fail)
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I will say this one more time; nobody is seeing the instrument the Minister is about to sign. TDs and Senators are not seeing the instruments that are about to be signed into Irish law before the Minister signs them.

Thomas Byrne (Meath East, Fianna Fail)
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I am sure, as Cathaoirleach of the Seanad, that Senator Daly receives the communications from the Commission. Anyone who is on a joint committee will get communications from the Commission on proposals. These are legislative proposals that are before the European Parliament and the Council of Ministers. They enact them but, in the meantime, there are powers to deal with them here at this early stage, before they are passed.

Mark Daly (Fianna Fail)
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Yes, these are sent from the Commission to committees.

Thomas Byrne (Meath East, Fianna Fail)
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Those proposals may or may not be passed at European level. If the Government has to make policy decisions where variations are allowed for under the terms of the directive, that is done through primary legislation. There are many examples of the Seanad and the Dáil having to enact such measures by way of primary legislation. In relation to secondary legislation, which is used to implement a certain number of directives, there is a long-standing legislative procedure. The Seanad has the power to overturn that regulation. In the meantime, despite there being no statutory or constitutional requirement to do so, the Government has decided, at the request of the Seanad, that it should get a draft of the statutory instrument the Minister intends to sign six months in advance of the deadline. We believe that is of assistance to the implementation process. The Government has decided to do that. However, no such obligation is contained within the Constitution or within any statute. The Government thinks that this is a helpful thing the Seanad has suggested it do and it is willing to co-operate with it.

Mark Daly (Fianna Fail)
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The Government could waive privilege and give us the final draft. From what the Minister of State is saying, it seems this is not a step the Government----

Thomas Byrne (Meath East, Fianna Fail)
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I certainly do not have a mandate to commit to waiving privilege. That would be a matter for the Government or for individual Ministers.

Mark Daly (Fianna Fail)
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I am just saying that, based on the speech, it seems this is not a step the Government can or should take unilaterally. I just want to be clear that the final draft is not being made available to this committee or to the Oireachtas.

Thomas Byrne (Meath East, Fianna Fail)
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The signed regulation-----

Mark Daly (Fianna Fail)
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I am talking about the final draft before it is signed. I am sorry. I just want to be clear-----

Thomas Byrne (Meath East, Fianna Fail)
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-----is published in Iris Oifigiúil-----

Mark Daly (Fianna Fail)
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-----what I mean is the final draft before it is signed.

Thomas Byrne (Meath East, Fianna Fail)
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-----having been laid before the Houses. It is then subject to potential annulment if either House does not want the statutory instrument to proceed. In the meantime, because the legislation has gone through the democratic process in the European Union, we have no option but to implement it before the deadline.

Michael McDowell (Independent)
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It seems there may not be a huge problem with this if we are clear about what we are talking about. The Minister says:

[Office of the Parliamentary Counsel] drafts are prepared by the Attorney General, in his capacity as legal adviser to the Government, under Article 30 of the Constitution – each iteration constitutes a form of legal advice and is privileged on that basis. This includes the final stamped draft prior to Ministerial signature.

I know the procedure because I have been a Minister. If the Attorney General's office is asked by the Department of justice or whatever Department to prepare a statutory instrument or to advise in relation to a statutory instrument, what the Minister of State is saying is that the relationship between the Minister and the Attorney General at that stage is one where he is getting advice and assistance in drafting and therefore it is legally privileged. I understand that position.

We have got the phrase "the final stamped draft". As I remember it, the final document that used to land on my desk had a stamp on it from the Attorney General's office saying this is what you say you want and what we say is the legally correct way of doing what you want in terms of drafting a statutory instrument. A number of points arise out of that. One is that the document that appears in public does not bear any stamp on it. What happens in the Department is the final stamped draft is reproduced without the stamp on it. It is sitting there on the Minister's desk. The Minister does not sign the stamped document; he signs a plain copy which originates from the stamped draft he has received. That is my understanding of it. That being the case, whatever it is on the Minister's desk, prepared by his own civil servant saying "This is the final version that we are proposing that you sign into law". That document is not the stamped draft; it is a document generated after the stamped draft. Does the Minister of State follow me? It is what the Minister proposes to sign. Having received the advice of the Attorney General, a plain copy is made, with no stamps on the face of it - nothing - it is just signed into law as the statutory instrument.

What I am saying is that I accept that the final stamped draft coming from the Attorney General's office to the Minister's office - let us allow for a second the argument that it is privileged - is prima facieprivileged. What happens after that in the Minister's office is that he looks at the stuff he gets back from the Attorney General's office and he says: "That seems right. I am prepared to sign it. Give me a plain copy of that without any stamps on it and I will execute it. Tomorrow morning I will sign it into law." That document is not privileged because it is a separate document. It does not bear any stamp of the Attorney General. It is based on the proposition that the Attorney General's office has said it is ready to go. The Minister then decides. It is ultimately the Minister's constitutional right to say he will sign that or he will not sign it. He could say: "I don't like this now any more. It is politically unwise for me to sign it. It's going in the bin." He can do that if he wants.

Thomas Byrne (Meath East, Fianna Fail)
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No.

Michael McDowell (Independent)
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He can.

Thomas Byrne (Meath East, Fianna Fail)
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He cannot.

Michael McDowell (Independent)
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He can certainly do that.

Thomas Byrne (Meath East, Fianna Fail)
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He cannot.

Michael McDowell (Independent)
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Yes, he can. I am sorry. I am telling the Minister of State, he certainly can. He can say "There have been protests outside my Department. I'm very grateful to the AG's office for getting this into apple pie order, but I've decided I am not going to sign it." That is the law. That is the constitutional position. He is not obliged to sign any document-----

Alice-Mary Higgins (Independent)
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Or he can sign a different version of it.

Michael McDowell (Independent)
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-----which arrives over from the Attorney General's office. That is the first thing.

The second thing is I want to welcome the progress that the Minister of State has made. I just want to be fair to the Minister of State.

Thomas Byrne (Meath East, Fianna Fail)
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I have tried to-----

Michael McDowell (Independent)
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I welcome the progress. At least we are going to see the first draft of a statutory instrument.

The second point I want to make is this: if I, as Minister for justice, decided that before I sign a firearms regulation statutory instrument under the Firearms Act that I have got from the Attorney General's office, I want one last opportunity to inform the gun clubs of this - I will show it to them because I want to consult them on the result - I am perfectly entitled to do that. If I do that, I cannot say it is privileged for the purpose of me telling the gun clubs. You waive privilege if you make a document available to a third party who is not part of the lawyer-client relationship.

Thomas Byrne (Meath East, Fianna Fail)
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Last week a judge in England found that privilege was waived due to a person talking to ChatGPT.

Michael McDowell (Independent)
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The Minister of State knows that very well. He is a very skilful lawyer and he knows full well-----

Thomas Byrne (Meath East, Fianna Fail)
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I am out of practice.

Michael McDowell (Independent)
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-----that you waive privilege if you hand a document, over which you could have claimed privilege, to a third party and the third party has it in their hands. You cannot say it is now privileged because it is part of a correspondence between me and my adviser. If you make it available to third parties, you effectively waive your privilege.

I was looking at the Minister of State's statement - it is not as dark as it might appear in the first place - because he says privilege by its nature is waivable, and individual Ministers may waive privilege in a particular case on the facts of a specific instrument. It sometimes happens in the House that a Minister says the Attorney General advises him he cannot do this or the Attorney General has told him something. A Minister did it the other day here in this House. He said what the Attorney General's advice was in relation to a matter. The Minister can waive his privilege. Let us be clear about this. The Minister of State himself waived privilege by telling us what the Attorney General's view was about the Canadian trade treaty the other day. He waived privilege by telling us that he had said certain things, or that as far as he was concerned it was valid or whatever.

The point I am making is this: the Chair is saying to the Minister of State that it is very strange that, as a concession, the Government is willing to show to us the first document - the first draft - that goes from the Department to the Attorney General but it seems weird that at the end of a long process the document sitting with no stamp on it on the Minister's desk must be the subject of privilege and cannot be shown to anybody. I take the point about the difference between the Dáil and the Seanad, but we are not here to make the Minister accountable for this. We are not going to cross-examine the Minister as to the merits of what he is doing. Our remit under the Standing Order is to send any document which we consider merits consideration by a sectoral committee to the sectoral committee. That is all we do. We do not say that it is outrageous, scandalous or anything else. We do not say it could have been done differently. We simply come to a conclusion that the statutory instrument is of such a nature that the sectoral committee should be alerted to the fact that it is about to be made.

That is all we do. That is our function. I agree the stamped copy is part of the correspondence but once the stamped copy is received in the Department, an unstamped version of it is made and put in front of the Minister. Once that happens, you cannot say that it is necessarily privileged just because the Attorney General has had input into it or the Office of the Parliamentary Counsel has had some input. That does not make it privileged any more than a Bill is privileged because the Attorney General or the Office of the Parliamentary Counsel has had some input into the drafting of the Bill. I am saying to the Minister of State that I am prepared to concede to the Attorney General, if he is going to claim privilege on transactions between himself and Ministers where his stamped draft has his stamp on it, that the Minister is entitled to regard it as part of his advice. Once the stamp is taken off it, however, and it is put in front of the Minister he is entitled, as I said, to not sign it.

Thomas Byrne (Meath East, Fianna Fail)
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No.

Michael McDowell (Independent)
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He is entitled. I do not know where the Minister of State is getting this-----

Thomas Byrne (Meath East, Fianna Fail)
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I can answer that.

Michael McDowell (Independent)
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Will the Minister of State explain it to me?

Thomas Byrne (Meath East, Fianna Fail)
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I will. Senator McDowell gave the example of the gun club statutory instrument that may not be necessitated by the European Communities Act by our membership of the EU.

Michael McDowell (Independent)
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Yes.

Thomas Byrne (Meath East, Fianna Fail)
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The Minister can decide "Yes" or "No" to sign that regulation into law. I am not here with those types of regulations. The types of regulations I am here about are ones that are necessitated by virtue of our membership of the European Union and we have to do it. There is no policy choice within the regulation-----

Mark Daly (Fianna Fail)
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I think what the Senator was trying to do was-----

Michael McDowell (Independent)
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That was only an example-----

Thomas Byrne (Meath East, Fianna Fail)
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But if the Minister decides-----

Michael McDowell (Independent)
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We are talking about European directives-----

Thomas Byrne (Meath East, Fianna Fail)
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Yes, so the Minister has no choice.

Michael McDowell (Independent)
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Ireland has a choice at all times to go by legislation or statutory instruments-----

Thomas Byrne (Meath East, Fianna Fail)
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Yes.

Michael McDowell (Independent)
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-----at all times in respect of directives-----

Thomas Byrne (Meath East, Fianna Fail)
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But-----

Michael McDowell (Independent)
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-----and a Minister might well say to himself, "Sorry, I am looking at this and I prefer to go the legislative route".

Thomas Byrne (Meath East, Fianna Fail)
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That is not the same as saying "I am not going to sign it".

Michael McDowell (Independent)
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In which case the same document, roughly, would be put in Bill form and submitted the Houses. That is what would happen.

Thomas Byrne (Meath East, Fianna Fail)
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Yes, but that-----

Michael McDowell (Independent)
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The Minister never loses his capacity to say "I am not signing it".

Thomas Byrne (Meath East, Fianna Fail)
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But the State is always obliged to implement it.

Michael McDowell (Independent)
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He may have this document sitting on his desk for three months. He should have sometimes, rather than the last day, the last minute and-----

Thomas Byrne (Meath East, Fianna Fail)
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That is another problem.

Michael McDowell (Independent)
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Given that a clean copy of the document the Minister is going to sign is put in front of him, or is available in the Department, and it does not bear the stamp and the Minister has still not signed it, the new document minus the stamp cannot be privileged. That is the point I am making.

Thomas Byrne (Meath East, Fianna Fail)
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I cannot accept that point. The other reality is that when this is before the Minister, and this is a narrow set of EU-derived legislation, the State has no choice in these cases but to implement what the European Parliament and the governments, including this State, have already decided to do to implement this law. If we do not sign it and we do not legislate for it within the two years, then we have another problem, which is fines. This is part of the reason I really supported this committee and I thank members for their acknowledgement of the work that I have done. We do not want fines. The Minister has very little choice at the end of the day. Between the stamped draft arriving at the Minister's office, I would not say typically late but typically at a very late point in the process-----

Michael McDowell (Independent)
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That is part of the problem.

Thomas Byrne (Meath East, Fianna Fail)
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In fairness, that is what I would like this committee to assist with in changing the culture around that. There are tight timelines and that is a problem for everybody, but we do need to get these things on time because they have been imposed on us by our friends in the European Parliament and by the governments, and we have accepted them as obligations of our membership.

Michael McDowell (Independent)
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The Minister does not sign the stamped draft. That is the point.

Mark Daly (Fianna Fail)
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I will bring in Senator Alice-Mary Higgins. I thank the Minister of State for his contribution. As he said, this is the information he has from the Department. Senator McDowell made the point that if the Government is willing to waive privilege on the first draft then I think it would be reasonable to say that it should waive privilege on the last draft. I understand what the Minister of State said in relation to it being up to Ministers individually but given that it is about to become law and the Minister is about to sign it, then people should be entitled to see if. I will bring in Senator Alice-Mary Higgins-----

Michael McDowell (Independent)
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Just before that, what the Minister of State is really describing is a process whereby the final draft that comes to the Office of the Attorney General is given at ten seconds to midnight in terms of time for a signature-----

Thomas Byrne (Meath East, Fianna Fail)
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I am with the Senator on that.

Michael McDowell (Independent)
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-----and at that stage it would be inconvenient if he had to send it to this committee.

Mark Daly (Fianna Fail)
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If it were to have scrutiny or transparency.

Alice-Mary Higgins (Independent)
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Senator McDowell touched on one of the points I was going to make. Ultimately, it is the Departments that are putting forward legislation.

Thomas Byrne (Meath East, Fianna Fail)
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No.

Alice-Mary Higgins (Independent)
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The Attorney General has that legal advice and the legal role and all of the rest, and I am sure the Minister of State would agree the Attorney General gives input to any primary legislation. Between Committee Stage and Report Stage we know that the Office of the Attorney General is consulted, engaged with and gives advice. However, I do not think the Minister of State would suggest that the text that comes to us is privileged even if it were based on the Attorney General's advice. In many instances, and it has been documented, it has been shaped and adapted between Committee Stage and Report Stage based on the Attorney General's input and so on.

The Office of the Attorney General has a function under Article 30. I went back to check this. It has a function of legal advice to the Government but it is an advisory role. The responsibility in putting forward legislation, be it primary or secondary, is ultimately the Government's responsibility. If there is a statutory instrument coming from the Department of Health that the Minister for Health is being asked to sign in, that is a statutory instrument of the Department of Health. In that context, the statutory instrument of the Department of Health, prepared by the officials, is a separate document. It is a very similar point. Senator McDowell has the advantage of having seen it from the ministerial side. From the Oireachtas side, and as probably one the longest serving Members here in the Seanad, I have seen it on the other side too and we know that this is how it works. The Attorney General has an advisory role. The Government is not an extension or functionary of the Attorney General. The Attorney General has a very clear advisory role to Government.

Again, what is being asked here relates to the point about when the Government has taken its advice from the Attorney General, which it takes very seriously but is not bound by. There was a kind of a blurring of the line of whether we are not obliged to sign it. We are obliged to transpose the directives, but we are not obliged or bound by text prepared by an Attorney General either in primary or secondary legislation. I say that in the context of having seen advice from an Attorney General either changed or, in some cases, moved past or moved around between primary and secondary legislation. I know that I have had debates on Committee Stage where we were told the position was completely closed by the Attorney General, and by the time it got to Report Stage we had a different version of the text in front of us.

To suggest that the Minister has to sign what the Attorney General gives the Government is a little bit of a piece. We are disappearing the part which is the Department's and the Minister's responsibility to say, "Yes, thank you for this input. I want to make a slightly different choice". I really was concerned with the suggestion that there are no choices in this and there are no policy choices in this. There are choices in this and it is not the case that all policy choices mean that things are gone through primary legislation. We could probably go through the example the Cathaoirleach has given as to who was to implement. That is a key policy choice that was made within a statutory instrument. I could give an example in terms of the procurement directive back in 2014. Decisions were made not to opt for some of the choices, for example, the exclusion of the price-only approach to procurement. That was a choice made in the course of the statutory instrument. There are multiple policy choices that have consequences for the public.

I refer to issues such as to what extent elements of the directives will be implemented, in which way, who will implement them, which aspects will be implemented, what the penalties will be and so forth. There is a huge amount of pertinent decision-making involved and that is why I also push back on the suggestion that it has had a big, long process. I am very aware of that. We all know that there is another process and I have, in the committees of which I am a member, frequently engaged with communications that come from the European Union on proposed directives. Indeed, the climate and finance committees, which I sit on, have sent its views back into that process. That is one piece. Then there is the question of the directive and the national law.

What we are talking about here is scrutiny of the national law process. There is a reason there is a national law process. As the Minister of State said, regulations take effect immediately but directives require national transposition because there is a national component to them. A national accountability element is designed within the European structures because there should be a level of national decision-making and engagement around how these directives are transposed. There are multiple policy choices which are dealt with through secondary, and not just through primary, legislation. That is what we are talking about here. It is about when those choices are being made. It is not that we want to catch people out. It is not that. It is literally that we believe that the Oireachtas, elected by the people of Ireland, has a useful input to make on the sets of choices around that transposition. The Attorney General has a very important legal perspective to bring in but if, for example, it is a directive relating to children and there is a question as to whether Tusla or some other body is responsible, the Joint Committee on Children and Youth may have a useful perspective on that in terms of what would be effective and what it has learned. That could then be taken on board by a Minister within the choices that he or she has as a Minister around how the directive is transposed.

We are focusing on the national component that exists as a separate part of the process, with separate responsibilities and we are trying to ensure that it is good law and that the Oireachtas inputs into it. It is important to be clear that there are choices and that the Department makes the final call. There is a concern, although I recognise we are getting this first draft, that information notes and first drafts are not the same thing. I am very concerned if we end up with information notes that we will just end up with what we saw in the communication and that we will just get another version of what the directive states, which is not an idea of where Ireland is going in its transposition.

Mark Daly (Fianna Fail)
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I will bring the Minister of State back in now because I am conscious that we are trying to keep the length of these meetings to about an hour. I thank every body for their engagement. The Government has made a decision to make the first draft available to us. It can also make the same decision to make the final draft available to us.

Thomas Byrne (Meath East, Fianna Fail)
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On the major policy choices, this will be primary legislation. The first draft is significant. Officially it says first draft or instructions but we have told Departments that we want to see first drafts out and we really believe that will satisfy this committee in terms of the information it is seeking. Again, that should be six months before the end. There will be a bit of work in Departments. We still have to implement the law. There are people who may have rights or obligations accruing because of these laws and we cannot, from a legal certainty or rule of law point of view, allow matters to delay past the transposition deadline. I have been very clear about that-----

Alice-Mary Higgins (Independent)
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As has this committee-----

Thomas Byrne (Meath East, Fianna Fail)
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Yes, in fairness and as I said, I want this committee to be of help to that process and believe it can be. The position on privilege is that I am not waiving privilege by saying that anything the Government says in the Houses is on the advice of the Attorney General. I cannot simply say that I am not accepting that. This idea that we have a choice, as Senator McDowell suggested, and that the Attorney General is just an adviser and we are mere functionaries is not correct. In some ways, we are fulfilling obligations that are imposed on us by virtue of our European Union membership. We told Departments what to do and they were not complying with this. Even on the original decision, Departments were not complying with this at the start. As I said in reply to the Cathaoirleach earlier, I had strong words with them and told them that this has to happen. It is starting to happen and the committee has that. I am sure committees will look forward to its input. I am not sure if this committee has been able to submit the drafts we have sent to the various committees but they will find them useful. Then, when the statutory instrument is signed, this committee will have the opportunity to annul it by a vote of this House. That is a long-standing provision that is there. This would be at the end of a process.

There is a move within the European Union to move more to regulation at an EU level because of the risks, particularly in the context of the Single Market, of different laws applying in different jurisdictions. Particularly in primary legislation, we may add nuance or make a change but France or Spain might do something differently, meaning that companies who want to sell goods in the Single Market find that they may have slightly different obligations. Therefore, we will see, as part of the process of perfecting the Single Market of the European Union, a general move towards regulations rather than directives at European level. It will not be exclusive but these will still be enacted in the same way in Europe and Oireachtas committees will still have the same opportunities to use their functions and powers under the Lisbon treaty to be involved in the process.

Mark Daly (Fianna Fail)
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I will allow Senator McDowell in for one minute.

Michael McDowell (Independent)
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I just want to make one inquiry. I read in the newspapers that there was a move in Europe to try to move away as far as possible from directives and towards regulation. All I am saying is that is a proposition that should have been debated in the Houses of the Oireachtas because it is a breach of subsidiarity. From now on, one size is to suit all and there is to be no discretion given to local jurisdictions. I read about that with some degree of alarm and I am just making that point. It has nothing to do with this committee-----

Thomas Byrne (Meath East, Fianna Fail)
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I am happy to have a debate separately about it.

Michael McDowell (Independent)
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I am just saying-----

Thomas Byrne (Meath East, Fianna Fail)
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They still have to go through the same democratic process. It is not like they are in a bubble. It is not like an Irish regulation-----

Michael McDowell (Independent)
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Did any Irish Minister have a mandate to say that we do not want directives in future when regulations will do?

Thomas Byrne (Meath East, Fianna Fail)
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It is the Commission that makes proposals.

Michael McDowell (Independent)
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Yes, exactly and it got agreement, apparently, from Ireland.

Alice-Mary Higgins (Independent)
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Related to that, there is some concern in relation to the omnibus approach that is interfering with that other part of the process the Minister of State has touched on in terms of communications. It is no longer clear which committee communications should go to. They are going to one committee and then maybe getting referred on or maybe not. I include here, for example, the digital omnibus. That found itself in the weeds as to where it would be discussed because elements have been combined in a way. I worry about that as a trend and direction in the context of lessening the scrutiny we would have in the first part of the process.

Thomas Byrne (Meath East, Fianna Fail)
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I am happy to come before this House or the Dáil on simplification at any point. It is on my agenda at the General Affairs Council and I am more than happy to come in to talk about simplification and that agenda.

Michael McDowell (Independent)
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That would be a welcome discussion.

Mark Daly (Fianna Fail)
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I thank the Minister of State. We are heading into injury time. The object of this committee is EU scrutiny and transparency. The terms of reference of the committee in our Standing Orders are that we would get the draft about to be signed into Irish law by the Ministers and that Oireachtas committees would be given those so that the people of Ireland are allowed to see drafts before they are signed into law. That can account for 60% of the laws made in Ireland every year so this is no small issue. We want to prevent gold plating. That can happen and has happened in the past in relation to EU laws that are added to by Departments.

Alice-Mary Higgins (Independent)
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I want the best quality of law. That is the core.

Mark Daly (Fianna Fail)
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That is a good way of putting it. I suggest we write to the Attorney General, the Taoiseach and all relevant Ministers to say that in light of the fact that they have made the decision to waive privilege on giving us the first draft, they would simply also waive privilege in relation to the final draft and make that available to Oireachtas committees and to this committee. That would achieve what we are trying to do, which is to provide the transparency that the people of Ireland deserve. They deserve to know what is about to be made law on their behalf by Ministers. This House, the Dáil, and the TDs who were elected should be allowed to see it before it becomes law. I appreciate what the Minister of State said about us having lots of discussion on this. He is pointing it out as it is.

From my point of view, that is not how it should be. We need to get to the point where we all agree together that the people should see the laws that are about to be enacted on their behalf so will we get agreement to write all the relevant Ministers, the Taoiseach and others with regard to trying to get them to also waive privilege when it comes to the final draft? Does the Minister of State want to make any final remarks before we-----

Thomas Byrne (Meath East, Fianna Fail)
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I am more than happy to come before this committee but I am bound by the Government decision-----

Mark Daly (Fianna Fail)
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We accept that.

Thomas Byrne (Meath East, Fianna Fail)
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-----and my mandate is simply to attend and deal with the matters as decided by the Government. I am more than happy on request to talk about any aspects of the EU. Senator Higgins has issues with simplification. I am more than happy to come in to defend the Government position - she does not need an explanation of it - and to discuss those issues and any other issues that arise. The multi-annual financial framework is something that is very important coming up on my agenda. I am more than happy to talk about that, the Presidency and the enlargement of the EU. They are major issues and I am happy to talk about them. I know the Seanad has regular engagements with the European Parliament, which is important.

Mark Daly (Fianna Fail)
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Could I get agreement on the letters as outlined? Is that agreed? Agreed. We also have the traffic light system. I suggest that we put that system on the Oireachtas website and Oireachtas social media as well so that the people can see the legislative proposals coming down the track and how much time is involved. The Minister of State is most welcome to stay. We just have one last procedural matter. I thank him for staying longer than we had anticipated. Before we go to any other business-----

Alice-Mary Higgins (Independent)
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Can I just check whether we have the information?

Mark Daly (Fianna Fail)
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We did not get a draft SI but we will refer all the information notes to every committee as we get them.

Alice-Mary Higgins (Independent)
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Maybe that is an example of where we could go back and remind them that while we appreciate the information notes, we will want the draft SI.

Mark Daly (Fianna Fail)
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We will do that. Is it agreed that we send that to the relevant committee?

Michael McDowell (Independent)
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Are we going into private session?

Mark Daly (Fianna Fail)
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We move to any other business if the Senator wants.

Before we move on to any other business, I would like to ensure that all the draft SIs received by the committee have been referred to the respective joint committees for further consideration and scrutiny. The committee has received draft SIs in respect of a number of directives. The first Directive (EU) 2024/1711 as regards the improving of the Union's electricity market design from the Department of Climate, Energy and Environment has been circulated to members. The deadline was inJanuary 2025. This aspect of the directive is overdue so is it agreed that we write to the committee and say this is overdue and it might inquire of the Department? Given that it is about electricity and energy prices going through the roof, this should be overdue. The second directive is Directive (EU) 2024/1799 concerning common rules promoting the repair of goods from the Department of Enterprise, Tourism and Employment, which has been circulated to members. The deadline is 31 July. With the committee's agreement, we will refer these to the respective committees. Is that agreed?

Alice-Mary Higgins (Independent)
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Can I just ask?

Mark Daly (Fianna Fail)
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Can I get agreement first?

Alice-Mary Higgins (Independent)
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I want to agree but I want to just check something. This is from the Department of Enterprise, Trade and Employment but is it under the right to repair?

Mark Daly (Fianna Fail)
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It involves a respective joint committee so it could be more than one committee.

Alice-Mary Higgins (Independent)
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Because I suggest we go to the climate committee too given it relates to the circular economy.

Mark Daly (Fianna Fail)
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We can do that. Is that agreed? Agreed. It will go beyond one committee. Sometimes it will go to more than committee. A further draft SI has been received. Directive (EU) 2024/192 on the safety of toys as regard cobalt from the Department of Enterprise, Tourism and Employment. The deadline is 29 July. The draft is available to members on the system. I propose that we refer that to the Joint Committee on Enterprise, Tourism and Employment. Is that agreed? Agreed. In private session earlier, the committee discussed the proposal that any further draft statutory instruments received by the committee after this meeting be automatically referred to the relevant respective joint committees. I would like to get the committee's agreement on the record that this is what we will do. As soon as we get them, we will refer them.

Alice-Mary Higgins (Independent)
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I suggest that when we get an information note rather than an SI, as well as passing that information note on, we would remind the committee of our expectation of having the initial draft SI as well. I know we are in the battle for the last SI but we need to be getting those first SIs because in some cases, the information note are literally just telling us what the directive says.

Mark Daly (Fianna Fail)
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Is that agreed? Agreed. Is it agreed that any further draft statutory instruments received by the committee be automatically referred to the respective joint committee or committees? Is that agreed? Agreed. Is it agreed that we go into private session? Agreed.