Tom Kitt (Dublin South, Fianna Fail)

On Committee Stage in the Seanad I did not deal with section 28 of the Bill as passed by this House. Acts of the European Communities and European Union, normally directives and regulations but also the Treaty of the European Community, are often referred to in Acts of the Oireachtas and statutory instruments. From time to time, these regulations and directives are revoked and made again with or without modification. The question arises as to what effect a revocation has on references in our Acts and statutory instruments to these European references. It was hoped that section 28, as passed by this House, would deal with this. However, most references are references to directives and the majority of these are given effect by ministerial regulations made under the European Communities Act 1972. The regulation making power in that Act is contained in section 3. In its application in a European directive, it is limited to giving effect to the directive. Section 3 of the Act states, "may contain such incidental, supplementary and inconsequential provisions as appear to the Minister making the regulations to be necessary for the purpose of the regulations".

If a replacing directive makes material modifications, as many of them do, to what has been provided by the directive being modified, and the directive being modified has been implemented by regulations made by a Minister under the 1972 Act, those ministerial regulations might not be capable of being kept alive simply by the device provided for by section 28 of the Bill. The scope of the regulation making power that the Minister concerned can exercise to give effect to the new directive could have increased or decreased in comparison with a corresponding power that was exercised to give effect to the replaced directive. On that basis, it is better to address this issue as it arises on a case by case basis, rather than providing generally for it in the Interpretation Bill. An attempt was being made to tidy up the legislation, especially in terms of primary legislation, but the advice is that it is better to deal with this type of situation on a case by case basis.

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