Noel Treacy (Galway East, Fianna Fail)

The terms defined in the Bill reflect the close interdependence that exists between national and EU law at this mature stage of our EU membership. All too often legislative terms employed in EU legislation are accused of being deliberately opaque. That is not true. The process of law making from its inception in Brussels to the implementation at national level still remains poorly understood even though we have been successful EU members for more than 30 years. Constant allegations are made that EU proposals could be processed without any political input, a charge repeated on Second Stage.

It is not the case that there is any lack of political input when decisions are being arrived at in the EU. Politicians, not officials, take the decisions. The Commission is vital in ensuring a level playing field. It proposes, discusses, debates, assesses the challenges and complaints from European citizens and examines the requirements of various governments and the debates at European Council level. Following that, it is charged with the responsibility of creating a legislative working document which is then debated through the political process. At no time has the Commission the power to take decisions; it only has the power to initiate work to be done. We work on that basis.

European Community law-making is an intensely political process involving the governments of the member states, which carry with them their respective democratic mandates, and co-decision with the European Parliament. EC law goes through an elaborate and usually lengthy process which has crucial political input at all key points. It is often mistakenly assumed that decisions are taken by officials or by the European Commission. This point was inferred by a number of Senators last week but it is not how things work within the Union.

Under the European treaties, the Commission has the right to make proposals for legislation and only a very limited law-making power on a basis delegated by the Council. The Commission's role is important in ensuring that proposals are designed to serve the collective European interest and not the interests of individual member states.

The main EU decisions are made in the Council of Ministers where Ireland is invariably represented by Ministers or Ministers of State acting on behalf of the Government. In Ireland, the National Forum on Europe regularly debates European issues. Ministers, especially the Minister for Foreign Affairs and I, regularly attend meetings of the Joint Committee on European Affairs to debate proposals from the General Affairs and External Relations Council and other European Councils. All aspects of these proposals are discussed in general and in detail. There is cross-fertilisation of ideas and responses and we leave those meetings armed with the knowledge of what our legislators require of us in making decisions.

We go to the Council meetings, therefore, with the back-up of our officials, diplomats, officials in Brussels and civil servants in Ireland and in the Attorney General's office. All these support us and ensure that what we do is constitutionally and legally correct and is fair and equitable for the people of Ireland. These officials operate in a supporting role and do not take decisions. It is only when a proposal reaches the ministerial level that it can be adopted by the Council of Ministers.

With regard to some of the points raised concerning section 2, including those raised last week, I explained last week that this section will give Ministers of the Government the power to create indictable offences in regulations made pursuant to the European Communities Act 1972 where the Minister deems such a sanction necessary for more serious breaches of EC law. Some Members expressed concern at the perceived high levels of the penalties provided for, namely, a maximum fine of €500,000 and a maximum term of imprisonment of three years. Other complained that the scope of the power being given to Ministers was very wide-ranging.

Two points should be made. First, the penalties cited are the maximum penalties under the Bill. These will not be included in every regulation. In practice, many regulations adopted to transpose EC measures will continue to provide only for summary offences. The level of penalty will need to match the seriousness of the offence. The main point that must be borne in mind is that the European Commission proposes, the European Council makes decisions and we, as members of the Union, are obliged to accept those decisions and implement them in our domestic law. On the principle of subsidiarity, it is the legislators of this Parliament who make the decisions on what penalties are to be applied and what regulations are to be implemented through statutory instruments or whatever mechanism. We make those decisions on the basis of the power given to us under the Constitution and pursuant to the 1972 Act.

I can offer some examples. The Sea Pollution (Amendment) Act 1999 provides for penalties of €10 million and-or five years' imprisonment. Under the Veterinary Practice Act 2005, penalties of €320,000 and-or ten years' imprisonment are provided for. Under the Animal Remedies Act 1993, a person who has in his or her possession a prohibited remedy or an animal which has been administered such a remedy is liable on a first offence to a fine of €100,000 or ten years' imprisonment or both.

The Oireachtas passed that legislation. We are capping penalties in European legislation at €500,000 and a maximum of three years' imprisonment. On the principle of subsidiarity and taking account of our responsibilities, therefore, we are capping the powers that Ministers have to make regulations on all those issues even though other legislation permits much greater penalties. The penalties in this Bill of a maximum of €500,000 fine and up to three years' imprisonment — and the courts will make the decision on the actual fine and the term of imprisonment within those limits — are not especially excessive when compared with other legislation.

If we are to live up to our obligations, we must be in a position to provide for more stringent penalties where these are necessary. In some cases, it is necessary to provide for indictable offences to give proper effect to certain aspects of EC law. Indictable offences will only arise where this is necessary to ensure that we can provide for sanctions which are effective, proportionate and dissuasive. There is no point having legislation and penalties unless they dissuade citizens from breaking the law. There is a deterrent and people know what the impact will be if they break the law. That does not mean people will not break the law but their chances of breaking the law are lessened when the penalties are enforced.

Legislators have the power to put these penalties into practice, and it is critical that we do so. We are bringing uniformity to the maximum power, on the principle of subsidiarity, that we are transferring to our Ministers to make statutory instruments and secondary legislation. We are capping and restricting the power of Ministers and I have no difficulty with that position.

The European Union has evolved significantly in the past three decades. This means that the range and scope of EC law has increased. Many such laws have far-reaching objectives to which member states must give full legal effect at national level.

The maximum levels of the penalties have been set following careful consultation on what is necessary to implement EC law properly and a review of practice in other countries. In some cases, more stringent penalties will be required. Ministers in these cases will have to provide for such penalties either in existing legislation already approved by the Oireachtas which provides for such penalties or, if no such legislation exists, Ministers will have to propose new legislation which will be fully debated by the Oireachtas. We are satisfied that the levels of penalties are reasonable and equitable.

Second, in this Bill the Minister will only have a limited power to make provision for indictable offences where this is necessary to meet our treaty obligations. In such cases, the Minister will need to operate within the parameters laid down in section 2. In this case, "necessary" means precisely what it meant in 1972 when the Oireachtas gave Ministers powers to take the actions required nationally to give effect to our EC obligations. This requires Ministers to make a careful assessment of what is required of us nationally to transpose a specific EC measure into domestic law.

There are safeguards. The courts, in a number of important cases, have reviewed the manner in which the State implements EC law by way of secondary legislation. The courts have outlined in these cases that there are parameters which must be respected when implementing EC law by way of secondary legislation. Essentially, secondary legislation should only be used where the EC measure sets out in sufficient detail the principles and policies to be implemented. If this has not been done, the courts have indicated that in those instances, primary legislation should be used. Thus, Ministers' decisions when implementing EC measures will ultimately be subject to challenge in the courts, which are key arbiters on our precise legal obligations under the treaties.

I pay tribute to Senator Quinn, as a committed European and national politician, for the contribution he is making in this debate. On behalf of all our colleagues I congratulate him on being elected chairman of EuroCommerce, an important body in the EU. It is important that we fulfil the goal of the EU, the Single European Act, the thrust of European law and the ethos of the union, that is the mobility of goods, services and people.

Ireland has a critical responsibility to fulfil its obligations as a member state under the EU directives past and future. To ensure we have an administratively and legally effective solution we ask this House to ratify this legislation, taking into account the fact that we already did so in 1972 and that we have acted fairly and successfully in implementing European law. However two cases under the Common Fisheries Policy, taking into account the secondary legislation the Supreme Court debated, make it mandatory that we as legislators bring our law up to date so that there is no doubt about the capacity of Ministers to make statutory instruments and secondary legislation to execute our obligations as members of the EU. On the principle of subsidiarity and equality we must ensure it is administratively effective, legally correct and uniform in its application and that we are capping the powers Ministers can have today and tomorrow in the exercise of those serious legal duties.