Derek McDowell (Labour)

Along with other Members who spoke, I am an enthusiastic supporter of the European project. I am willing to go one step further than Senator Dardis in embracing German cooking as part of the project. The Minister of State spoke about it at great length. I am not sure why he did so because it did not appear to be entirely apposite to what we are discussing. I will let that pass, however.

I share some of Senator Quinn's scepticism about the Bill. We are looking to remedy a fairly shoddy administrative practice that has developed over the years but it is having the effect of shining the light into one of those dusty corners where one finds things one did not think were there. It is no harm that it is allowing us the opportunity to debate the practices that have developed in terms of the transposition of European legislation into Irish law.

Essentially, the Bill has two or three measures. It allows Ministers to create indictable offences up to certain limits provided they are of the opinion that they are necessitated by the requirements of membership of the European Union. It confirms the power, which I gather already exists in the 1972 Act, to amend primary legislation by statutory instruments. It confirms the validity of all instruments implemented over the course of the past 35 years since we became members of the European Union and it also allows statutory instruments which were not specifically created for the purpose to be used to create indictable offences, even though they were created for an entirely different purpose.

The primary action we seek to take here is to amend the 1972 Act to allow Ministers create indictable offences. The Minister asked the rhetorical question in his contribution as to the reason we need to do that now when we did not have to do it in 1972. It is important to remember that the 1972 provision did not come about by accident. There was a view at the time that the Dáil and the Seanad should not allow the creation of serious criminal offences directly by Brussels. The view was that if we were to deprive somebody of their liberty on foot of a criminal offence, that offence should have been created specifically in primary legislation or at least by discussion in this House and in the other House.

That is an important principle. If somebody is being deprived of their liberty, it is an important principle that Parliament, in our case the Oireachtas, in the first place creates the offence set to deprive somebody of their liberty. If we take the view that in some circumstances that is not so, there is an onus on the Government to state explicitly the reason that should be the case. The wording of the section we are inserting in the 1972 Act states that the regulations may make provision for offences to be prosecuted on indictment where the Minister of the Government making the regulations considers it necessary. It does not specify that the Government has to take that view, although I suppose it is implied. It simply states that the Minister must be of the view that it is necessary. I am not sure it is a good practice to allow a Minister to create a serious criminal offence, simply because he or she believes it is necessary, without reference to this and the other House. There is an onus on the Government and the Minister to explain the reason that should be the case.

Notwithstanding his enthusiasm, the Minister nonetheless believes it is necessary to confine this power in some way and that it will be available only if the maximum fine is to be €500,000 or less and the maximum imprisonment is three years or less. Is that provided for somewhere else or is that simply a decision the Department or the Minister made in considering how we should transpose this measure or amend the 1972 Act. If it is a case that the Minister was using his discretion, why did he settle on a term of imprisonment of three years and a maximum fine of €500,000?

The second measure the Bill provides for is that it allows statutory instruments to amend primary legislation. Perhaps it is the lawyer in me but this seems to offend the natural hierarchy of law.