Noel Treacy (Galway East, Fianna Fail)

I sincerely thank all Senators for the focused contributions. Senator Bradford asked what ordinary citizens would think of this situation. We can be guided by available information. According to the last European barometer poll, 87% of Irish citizens were positively in favour of the EU. Some 50% had a strong interest in the EU and 30% were committed to engaging with EU issues. We were pleased that we led EU countries in this table.

The citizen is part of the process and we as Members of the Houses of the Oireachtas are representatives of the citizen. The Sub-Committee on EU Scrutiny, comprising legislators, also represents citizens. The European Parliament, the largest and most democratic parliament in the world, is directly elected and represents the citizens of the European Union. By direct decision of the Council, or by co-decision with the Parliament, decisions are taken on a democratic basis after an average of three years' gestation, discussion and debate. At the Council of Ministers and in partnership with the Parliament a consensus is reached on directives. This is then sent to the Oireachtas, the representatives of the citizens, to ensure it legislates for the decisions taken.

Member state governments have a democratic mandate. Europe is a reservoir of democracy in global terms and all member state governments represent citizens. This Bill is about the implementation of EC law, initially at European level. On the basis of subsidiarity and membership of the EU, our citizens expect us to take account of the unique character of European law. It is initiated by the Commission and negotiated under various treaties, councils and in the European Parliament. It is ultimately agreed that it is mandatory on us, as legislators and as Government of a member state, to implement decisions in tandem with others on the basis of subsidiarity, taking into account our constitutional position and the peculiarities of various sectors of society, the economy and the social partnership agreements. Legislators have the ability to pass laws that are equitable and fair, even-handed and balanced and to ensure that penalties proposed are effective, dissuasive and proportionate. That is the purpose of the Bill.

Section 3(1) will permit Ministers to make regulations to give effect to EC law under the power already granted by the Oireachtas in domestic legislation. This is a perfectly reasonable provision which serves to avoid unnecessary duplication of legislation. Prior to the Browne and Kennedy judgments, it was thought possible to use a domestic regulation-making power for the purposes of giving effect to EC law, provided that it fell within the parameters of the particular domestic Act. The secondary legislation should be linked to the primary Act. In this case the original legislation of 1959 was passed prior to 1972 and the secondary legislation was passed in 1998. The Supreme Court struck it down based on the doubt surrounding the link between the three. On that basis we must revisit it and ensure the link is clarified and given the full force of the law. Consequently, we are debating it to ensure the legislation can stand the test. When penalties are enforced they should be legislatively powerful and operable in this jurisdiction. The Supreme Court held that such domestic regulation-making powers were not available for the purposes of giving effect to EC law unless the domestic legislation explicitly provided that it could be used for the purpose of implementing EC law. Prior to 1972, nobody could have created a situation under the Constitution whereby we would pass laws that would conform and adhere to the European Union. We presumed the 1972 Act would do that but we have found as a result of a Supreme Court decision in two cases that this was not so.

Consequent to that it behoves us as legislators to rectify the matter and ensure the legalities are clarified and perfected. This would mean the components of law, be they European directives, domestic law, secondary legislation or statutory instruments, have the force of law which is full, legal, operable, acceptable to the Supreme Court and fair to the citizens of the land. It is therefore necessary to make explicit provision for domestic powers to be used for the purpose of implementing European Community law.

In 1972, the Oireachtas gave Ministers the power to give effect to European Community measures through statutory instruments. At that time the Oireachtas indicated that Ministers, in making such regulations, could amend other legislation, including primary legislation, when necessary for the purposes of giving effect to the European Community law in question. This was required because of the primacy given by people to European Community law when they passed a constitutional amendment in 1972 which enabled us to accede to the European Community.

Section 3(2) replicates what is already contained in the 1972 Act with regard to regulations made for the purposes of implementing European Community law. As the new power will be used for dual European Community and national purposes, it is necessary to replicate the provision existing in the 1972 Act allowing regulations made for the purposes of giving effect to European Community law to amend legislation, including primary legislation, where necessary.

What is being proposed is no more than what was already provided for in the 1972 Act, although its remit is more extensive on this occasion. It is worth noting that section 3(2) is limited in its scope. It cannot be used to amend this Bill, the 1972 Act or the relevant section of the primary legislation being used to create the statutory instrument. The constitutional validity of this approach was accepted by the Supreme Court in the Meagher v. Minister for Agriculture case.

There are safeguards in place and a Minister can only use existing primary legislation to give effect to a European Community measure if the existing primary legislation relates in whole to the subject matter of the European Community measure. For example, a Minister cannot use the Institutes of Technology Act 2006 to give effect to a European Community measure on water quality, as it is not permissible to jump from one to the other.

However, it makes no sense if a Minister could not use, for example, an existing Act dealing with water quality to give effect to a European Community measure on the same subject. There would be cohesion, parallelism, linkage and commonality. On such a basis, it would be practical and sensible to ensure the legislation and the right to create secondary legislation is allowable under the Act.

This section will correct this anomaly and allow primary legislation which has been fully debated by the Oireachtas to give effect to relevant European Community measures which cover the same subject matter as the existing legislation. As outlined earlier, the courts have set out the parameters within which it is acceptable to use secondary legislation to implement European Community measures. According to the courts, in some instances it will not be appropriate to use secondary legislation and primary legislation will be required. Ministers are always subject to the review of the courts when using secondary legislation. I ask the House to accept the section as laid down and I regret I cannot accept the amendment so generously tabled and well debated by the Senator, and so well supported by the House.