Noel Treacy (Galway East, Fianna Fail)

This is again a very interesting debate for which I thank all the Senators involved. Last Thursday and again today, Senator Bradford clearly stated that he fully accepts the necessity and urgency of this Bill and I think all Senators accept this, which I appreciate. Senator Bradford stated that the Supreme Court judgements needed to be responded to. This has been the theme of my speeches from both last week and this week. Despite this, Senator Bradford now proposes to remove from the Bill one of its essential elements, which is the very provision that responds to and seeks to deal with the consequences of the Supreme Court judgements.

This section aims to remove uncertainty and doubt about the status of the secondary legislation affected by the Supreme Court judgements. The desirability of doing so was widely acknowledged last Thursday. When passed, this section will confirm the validity of the hundreds of statutory instruments, while at the same time protecting the constitutional rights of our people. Again, we must have balance. We protect the validity of the statutory instruments and also protect the constitutional rights of our people. The Legislature must respond to the Supreme Court decisions and we, as legislators, are doing so in this Bill.

It seems irresponsible for the Government and the Houses of the Oireachtas to require every one of the hundreds of those regulations to be remade, re-enacted and debated again. We would have a current debate on historic situations that had been part of our corpus of legislation over the years. This would seem to be a waste of parliamentary time and legally unsound. After all, they were adopted in good faith on the assumption that Ministers were perfectly entitled to use domestic legislation to give effect to EC law. It was accepted by everybody — lawyers, legislators and the populace at large — that this was the proper thing to do. Section 4 seeks to validate those regulations and confirm the aspirations and beliefs of all the different parties to all these legislative situations, be they our citizens, legislators, lawyers or our Governments.

The Supreme Court in Browne v. Attorney General and Kennedy v. Attorney General held that a regulation-making power could only be used to give effect to EC law where it specified this as one of its purposes. I highlighted the specific timelines which had given rise to this problem in the case brought by that fisherman prosecuted under an order in 1998 made under an Act passed in 1959 to give effect to treaty obligations we undertook when we joined the EC in 1973. In this legislation, we are tying all the periods and legislation together. We are giving validity to all the Acts to have secondary legislation attaching to them and taking that into one commonality of EC law that under such law, this Act copperfastens the initial decisions and legislation passed in the European Communities Act 1972. We are bringing all this together to have clarity and full legality and force of law, which is very important.

This Bill is intended to ensure uniformity in our mechanism for meeting our EC obligations and to end any uncertainty regarding measures introduced over the past 33 years. It does so by importing into every existing domestic regulation-making power the ability to use that power for the purpose of giving effect to EC law where the instrument of EC law falls within the scope of the Act in question. It is very clear. We are engaged in a serious legal brick-building exercise. We have the baseline of the Constitution of the country, under which we brought in the European Communities Act 1972 Act. We also have the baseline or common European directives passed by the Council of Ministers and the European Parliament. Linking the two, on behalf of the citizens of Ireland, is this new Bill, which grants power to ensure that the primary Acts of Parliament passed over the centuries and also the statutory instruments and secondary legislation created are accepted in law by the courts as legal instruments, connect with European directives and conform with the Constitution. We are doing no more and no less. This represents good law making.

Section 4 is required to validate any regulations which may have been made under purely domestic regulation-making power but which give effect to European Union law within the scope of the Act in which the power appears. The regulations being validated come within the ambit of the power to make regulations which was already granted by the Oireachtas, save that the Oireachtas did not specify that the power could be used for the purpose of giving effect to European Union law. The Oireachtas presumed that it was giving the power but it did not specify that fact. The position is being rectified by means of this Bill.

We are importing into every such instance of the power to which I refer the power to make regulations not only for the domestic purposes specified in legislation but also for the purpose of giving effect to European Union law in areas which fall within the parameters of that legislation. It is, therefore, appropriate to validate the regulations made and which, because of the judgments in Browne and Kennedy cases, are now in doubt. Many such regulations deal with matters of a very technical nature, such as, for example, the rules relating to the identification of animals. It is only the regulatory matters that are being saved by section 4. The latter provides that no regulations which conflict with the constitutional right of any individual can be saved by that provision.

The approach adopted in section 4 of validating existing secondary legislation reflects an approach adopted in a number of previous instances. It was used, for example, in section 4 of the Immigration Act 1999, which was the subject of a challenge in Leontjava v. the Director of Public Prosecutions. In the case to which I refer, the Supreme Court upheld the constitutionality of the approach, namely, incorporating instruments by reference rather than verbatim in the body of an Act. The Supreme Court has, therefore, already made a decision, the basis of which is similar to what we are seeking to achieve. What we are doing conforms with successive Supreme Court decisions, the Constitution, our major corpus of law and secondary legislation.

Senator Quinn and others raised a number of issues. A statutory instrument must be published in Iris Oifigiúil, the official journal of the State, and the national newspapers, and it subject to the courts. Any Department worth its salt will publish, by press release, decisions signed by Ministers in the form of statutory instruments.