Seanad debates

Wednesday, 4 April 2007

European Communities Bill 2006 [Seanad Bill amended by the Dáil]: Report and Final Stages

 

1:00 pm

Rory Kiely (Fianna Fail)
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I welcome the Minister of State, Deputy Treacy, to the House. This is a Seanad Bill that has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister of State may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For Senators' convenience, I have arranged for the printing and circulation of the amendments. The Minister of State will deal separately with the subject matter of each related group of amendments. I have also circulated the proposed grouping in the House. Senators may contribute once on each grouping. The only matters that may be discussed are the amendments made by the Dáil.

Question proposed: "That the Bill be received for final consideration."

Photo of Noel TreacyNoel Treacy (Galway East, Fianna Fail)
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Is cúis áthais é dom a bheith ar ais anseo arís chun Céim na Tuarascála den Bhille an-tábhachtach seo a chur faoi bhráid an tSeanaid. Tá mé ag súil le comhoibriú na Seanadóirí chun go mbeidh an reachtaíocht i dlíthe ár dtíre i gceann lá nó dhó. I am pleased to return to Seanad Éireann to report to it on the amendments made by Dáil Éireann to the European Communities Bill 2006. I had the honour to introduce this important Bill in the Seanad on 7 December 2006 when we had a full discussion. Once we finish our work, the Oireachtas will have made a significant contribution to improving the way we implement our European Community legal obligations.

As Senators will recall, the Bill arises from two debates in the House before Christmas on the serious implications of two landmark Supreme Court judgments in the Browne and Kennedy cases. In both, the Supreme Court found that a statutory instrument to give effect to EC law can only be validly made where the Oireachtas has specifically provided for it in the relevant primary legislation. As such, this is a discussion on primary and secondary legislation.

I will address the amendments made to the Bill during its passage through Dáil Éireann. I understand the Cathaoirleach proposes to take amendments Nos. 1 and 2 together. When the Bill left the Seanad, the further advice of the Attorney General was that these small technical amendments were required.

Amendment No. 1 contains the two changes the Dáil has made to section 1. Senators will recall that section 1 sets out the definitions which provide the foundation for the Bill. The first change made on the proposal of the Government was to include the term "provision of an Act". The addition of this term is aimed at allowing the transposition of EC measures where they give rise to more than one obligation on Ireland and where transposition by secondary legislation can be achieved under a number of different Acts rather than a single Act.

In the Dáil, my Committee Stage example of sanctions against Zimbabwe sought to illustrate how an EC regulation agreed by member states could give rise to four obligations on the Government requiring us to use three different Acts. The three Acts I mentioned were the Financial Transfers Act 1992, which I said would be used to give effect to the financial sanctions; the Control of Exports Act 1983, which I said would be used to give effect to the embargo on arms sales; and the Criminal Justice (Terrorist Offences) Act 2005, which I said would be used to provide for the freezing of individual assets. I have been advised I should not have referred to the Criminal Justice (Terrorist Offences) Act 2005, even if most of us would regard the activities of the regime in Zimbabwe as falling clearly within the title of that Act. I used the example of Zimbabwe to explain why we should continue to use secondary legislation, based on powers already approved by the Oireachtas, to meet our European Community obligations. I am sure the House will agree Ireland needs to be able to respond in a prompt and comprehensive way when sanctions and travel bans are imposed on countries and the Government is called on to ensure money and arms do not flow to corrupt regimes.

The second change made by amendment No. 1 involves the introduction of the term "body competent" in section 1 of the Bill. This change, which is necessary to provide authority for the implementation of regulations that may be made by the European Central Bank in the future, reflects the terms of the European Communities (Amendment) Act 1992. The amendment provides that measures taken under the EU treaties by a body that is not an institution of the European Communities, but has certain legislative powers conferred on it under the EU treaties, can be implemented in Ireland. The only body covered by the term "body competent" is the European Central Bank. There is nothing new in this provision. We are bringing this Bill into line with the 1992 Act, which was passed following the ratification of the Maastricht treaty.

The second amendment in this group has been made for precisely the same reason as amendment No. 1 — on foot of the changes we made to the definitions in section 1. Senators will recall that section 2 enables Ministers to make regulations to provide for indictable offences if that is necessary to fulfil Ireland's European Community obligations. The terms "provision of an Act" and "body competent under those Treaties" are being included in this section for the sake of completeness. The inclusion of the terms means Ministers will have the power to introduce stringent penalties, if necessary and if required by European Community law, on foot of decisions made by the European Central Bank's governing council.

Rory Kiely (Fianna Fail)
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We will move on to the second group of amendments. Amendment No. 3 provides for regulations to be laid before the Houses of the Oireachtas.

Photo of Noel TreacyNoel Treacy (Galway East, Fianna Fail)
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I introduced amendment No. 3 on Committee Stage in the Dáil to provide for a standard 21-day scrutiny procedure for statutory instruments, made pursuant to the provisions of section 2 of this Bill, which create indictable offences. I was aware from comments made in the Seanad and on Second Stage in the Dáil that some Members had genuine concerns about the role of the Oireachtas in the new powers provided for in this Bill. Such concerns first became evident in the Seanad in early December. I said then, and again at the conclusion of the Second Stage debate in the Dáil, that I would consider reasonable suggestions about how the involvement of the Oireachtas in EU-related secondary legislation could be enhanced. I agreed to introduce this amendment after consulting the Office of the Attorney General and my Government colleagues.

The new procedure will require Ministers to lay statutory instruments which will create indictable offences before the Houses of the Oireachtas. The statutory instruments, which will have immediate effect, will continue in force unless either House of the Oireachtas passes a resolution within 21 sitting days of their being laid stating that they should be annulled. The instruments, which will be published in Iris Oifigiúil, will be laid simultaneously before both Houses of the Oireachtas. The titles of the statutory instruments will be placed on the Order Paper of each House in English and Irish on the first sitting day after they have been received in the Oireachtas. Under that system of notification, which will ensure that Members of the Oireachtas are alerted to the fact that a statutory instrument is available for inspection, the length of time for which the instrument is being laid will be clearly set out. As Senators are aware, statutory instruments made pursuant to section 2 of this Bill will be laid for 21 sitting days. Members will be able to propose an annulling motion within that 21-day period. If such a motion is passed, the statutory instrument will be annulled. If no such motion is presented, the statutory instrument will remain in force. Departments will be responsible for forwarding copies of each statutory instrument to the sectoral Oireachtas committee that deals with the issue covered by the regulation. There will be two parallel procedures. This new procedure draws on the standard method of laying statutory instruments before the Houses of the Oireachtas. It provides equal scope for scrutiny by the Dáil and the Seanad.

I am aware most Senators have a special interest in European affairs. They will have every opportunity to scrutinise the actions of the Executive in cases in which indictable offences are created using statutory instruments made under section 2 of the Bill. This amendment responds to the key point made about Oireachtas scrutiny during the debate on this Bill in both Houses. It will give the Oireachtas an opportunity to have a final say when serious offences are created for the purpose of implementing European Community law under the European Communities Act 1972, as amended by the Bill before the House. Accordingly, Members of the Oireachtas will have new scrutiny powers when the Bill is signed into law, as a result of this amendment. When considered with the existing power to scrutinise European Community measures under the European Union (Scrutiny) Act 2002, our scrutiny arrangements compare well with European best practice in this area.

I emphasise that normal parliamentary options remain available. Members can challenge ministerial actions through parliamentary questions and Adjournment debates. The lawfulness of statutory instruments is ultimately open to challenge in the courts, in line with the process of open and accountable democracy that is governed by the rule of law. As I said on Committee Stage in the Dáil, it may be time to examine the way in which the European Union (Scrutiny) Act 2002, which has been in place for five years, has operated. I assure the House I will be open to undertaking such a review in the new parliamentary session. I am hopeful we will all be here to revisit this matter — is é sin ár nguí.

Photo of Paul BradfordPaul Bradford (Fine Gael)
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I welcome the Minister of State's comments on amendment No. 3. During the Dáil and Seanad debates, Fine Gael speakers advocated a more positive version of what the Minister of State is proposing. We would have preferred the Minister of State to provide that a positive resolution would have to be introduced to keep a statutory instrument alive. He is approaching this matter from a different angle, however, by providing that a statutory instrument will remain in place unless a resolution is introduced to remove it. I accept this amendment is an improvement on the original version of the Bill. It is important to ensure Members of the Oireachtas know when regulations are implemented.

One of the weaknesses of the statutory instrument system is that the public has a limited role in drawing up proposals of this nature. More importantly, most people do not have much knowledge of them. I appreciate that the process of laying regulations before the Houses of the Oireachtas is open and transparent, in theory. Even though we provide for the publication of various matters in Iris Oifigiúil, most constituents are not aware of the regulations which come before the Oireachtas. That most citizens are not monthly subscribers to the official journal places a greater onus on the Members of the Oireachtas, particularly in their capacity as members of joint committees, to ensure the regulations which are enacted are made public. Those who are affected by regulations should be aware of their consequences.

I would be happier if the process of Oireachtas resolution was to be used in a positive manner, rather than in the negative manner about which we are speaking. I welcome this measure because it improves the Bill. I thank the Minister of State for taking on board the concerns and suggestions outlined by my party in previous debates on this legislation.

Photo of Ann OrmondeAnn Ormonde (Fianna Fail)
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I am delighted with this amendment. I have often argued that the European Union (Scrutiny) Act 2002, which has been in place for more than five years, needs to be updated. I am glad the Minister of State has accepted that it is important to include in the 2002 Act some means of updating the arrangements in this regard.

This method is somewhat isolated because I am not sure there is public awareness of this amendment. I never wanted directives and regulations dictated to us from the central institutions of Europe. There should be transparency in respect of decisions taken in this country. The Oireachtas should decide on implementing regulations. This would allow people to be aware their public representatives look after them. We need a public relations campaign for this. I am becoming aware of this now because I am the spokesperson on these matters but I had to learn about it. It is very important that we can scrutinise the diktat from Europe with an opportunity to discuss whatever regulation is issued.

The concept of scrutiny should be revisited. I am not satisfied it works well. Only those who are members of the Sub-Committee on European Scrutiny understand it. As spokesperson on European affairs, I believe we have a duty to let the public know how the sub-committee is working and how institutions and the Oireachtas work hand in hand. We must be in control of our destiny, not subject to a diktat from Europe. If we violate the regulations we should have an opportunity to discuss it so that everyone can understand our reasons.

Rory Kiely (Fianna Fail)
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I will ask a foolish question. Does the Minister of State wish to reply?

Photo of Noel TreacyNoel Treacy (Galway East, Fianna Fail)
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I thank both Senators for their comments. I appreciate the points made, especially those made by Senator Bradford. His party was anxious for a positive resolution to this situation. If we examine this in detail he will agree that this is a positive parliamentary procedure. The distinct and separate roles of the Executive and the Oireachtas dovetail. The Executive has a serious responsibility and must conduct its business in a focused, efficient and effective manner. The parliamentary role of the Oireachtas is one of privilege and responsibility. Both Houses have a parallel opportunity to examine the instrument after it is lodged, at which point it has the force of law.

We have mirrored the desires of Fine Gael and those of other Members in ensuring a transparent mechanism has been provided to the Houses to inform Members and the public. The sectoral committees, a new dimension, will be aware that these statutory instruments are coming into law and have the force of law. If they wish to consider them in some way, they have the privilege of debating them. If Members wish to table a motion, that is the privilege of Members. The distinct roles of the courts, the Executive and the Oireachtas have been encompassed in what has been proposed to protect the integrity of the corpus of legislation required to meet our obligations in respect of the EU. I am grateful for the support shown by the Senators.

I accepted amendment No. 4, tabled by the Labour Party, in the Dáil. It refers to the collective citation. It brings a positive conclusion to our debate and the individual contributions of Members in the Seanad and the Dáil. The Bill was published on 1 December, debated in the Seanad in December, debated in the Dáil in February, in committee in March and now in the Seanad in April to take account of changes made in Dáil Éireann. This gives a clear signal to the citizens of our country of the dedication of the Members of the Oireachtas and of our public officials who worked so hard in consultation with the Attorney General, the Chief Parliamentary Counsel and others involved in ensuring we construct the most modern legislation required for Ireland in the modern world that fulfils our obligations as members of the EU and that allows us to maintain our integrity and independence as a sovereign republic. I salute everyone involved, including the Cathaoirleach and his staff, in ensuring this important Bill is about to be passed in the Seanad.

Photo of Paul BradfordPaul Bradford (Fine Gael)
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May I make a general inquiry of the Minister of State?

Rory Kiely (Fianna Fail)
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It must concern the amendment.

Photo of Paul BradfordPaul Bradford (Fine Gael)
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Members commented on a Supreme Court case while debating this Bill on earlier stages. The Supreme Court adjudicated further on matters pertinent to the legislation last week. Could the Minster of State inform the House whether last week's judgment has a bearing on this Bill? Will the Government have a further legislative response?

Photo of Noel TreacyNoel Treacy (Galway East, Fianna Fail)
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I thank Senator Bradford for his question. The judgment of the Supreme Court on 29 March 2007 in the cases of Quinn v. Ireland and the Attorney General and Tector v. Ireland and the Attorney General is confined to the issue of whether the Minister for Agriculture and Food may amend regulations that have statutory effect by further regulations made under section 8 of the Animal Remedies Act 1993 or whether such amendments can be made by statute only.

The effect of the judgment is confined to regulations made under section 8 of the Act and only applies to regulations made to amend previous regulations. The judgment states that because the Act did not contain a provision permitting such an amendment, which is included the European Communities Act 1972 and the European Communities Bill 2006, regulations made under section 8 of the Animal Remedies Act cannot amend other regulations that have statutory effect. The Animal Remedies Act did not have this express power and so these regulations were rendered invalid. The Bill we are debating encompasses all of these issues and links our responsibilities from the genesis in the European Communities Act 1972, through primary legislation and statutory instruments, to the clearly defined European Communities Bill 2006.

Question put and agreed to.

Question proposed: "That the Bill do now pass."

Photo of Noel TreacyNoel Treacy (Galway East, Fianna Fail)
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I thank the Cathaoirleach, the Clerk and the Members for their co-operation. We are deeply grateful.

Photo of Ann OrmondeAnn Ormonde (Fianna Fail)
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I thank the Minister of State, who has always made it easy for us to process Bills. I also thank the staff of the Minister of State who helped on the many occasions we encountered problems. Much of the content of this Bill was technical and I appreciate the back-up I receive.

Photo of Paul BradfordPaul Bradford (Fine Gael)
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I concur with the previous speaker. I thank the Minister of State but hope that this retrospective legislation will not come back to haunt us if we are still Members of these Houses.

Question put and agreed to.