Brendan Howlin (Wexford, Labour)

I move amendment No. 37:

In page 58, between lines 25 and 26, to insert the following:

"(10) Regulations under this section may not create an indictable offence.".

There was some discussion on this matter on Committee Stage. Amendment No. 37 simply states that regulations under this section may not create an indictable offence. Amendment No. 56 is related. The purpose of the amendment, as I explained on Committee Stages, is to reflect the provision of the European Communities Act 1972, which was recently emphasised by the Supreme Court in the case of Browne v. the Minister for the Marine. This is to the effect that regulations implementing an EU directive should not create an indictable offence.

The upshot of section 78(3) as worded seems to be that the Minister cannot create an indictable offence by regulations for the purposes of the European Communities Act, but he is reserving the right to do so under this legislation, to give effect to EU law. That undermines the 1972 Act in a sideways action. The policy of the 1972 Act is that regulations to give effect to EU law should not create an indictable offence. That should be done by primary statute law brought before the Houses of the Oireachtas so that it is not a secondary legislation issue for a Minister to decide whether to create a new indictable offence under Irish law. My legal advice is that the import of the Minister of State's unwillingness to accept this amendment is to undermine that principle.

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