Michael McDowell (Dublin South East, Progressive Democrats)

I have tabled the amendment on the advice of the Attorney General following recent judgments in two Supreme Court Cases, Browne v. Attorney General & anor and Kennedy v. Attorney General & anor. To date, there have been two domestic legal bases under which regulations have been made to give effect to the European Communities directives and regulations. These are regulations made under section 3 of the European Communities Act 1972 and the regulation-making power in a parent Act for domestic purposes with the same subject matter as the particular directive or regulation.

Two recent decisions of the Supreme Court found that regulations giving effect to European Community law and policy obligations are ultra vires of the parent Act. In those cases, regulations were under a standard regulation-making provision in the parent Act. It was not a European-oriented regulation-making power. The Supreme Court found that a general regulation-making provision in an Act that does not specifically provide for regulations giving effect to EU law cannot be used for the purposes of implementing EU law. The domestic regulations giving effect to EU law may only be made pursuant to a power expressly providing for such a purpose.

While it is the intention that all regulations now considered to be ultra vires will be remade together in a specific vehicle, I have been advised by the Attorney General, that I should amend section 86 to expressly incorporate a regulation-making power for international instruments. As the Bill gives effect to seven international instruments, it is important that the regulation-making power provision encompasses power to give effect to international and EU law.