Our system of scrutinising EU legislation should be revamped urgently

Opinion: Minister’s ‘Sir Humphrey’ phrases will not suffice

Alex White’s concern about the gaps in the system is clearly genuine. Photograph: Alan Betson

Alex White’s concern about the gaps in the system is clearly genuine. Photograph: Alan Betson


‘In due course” is a phrase straight out of the playbook of political obfuscation. Along with “at the appropriate juncture” and “in the fullness of time” it was one of Sir Humphrey Appleby’s favourite qualifications in Yes, Prime Minister.

This week Minister of State for Primary Care Alex White told the Seanad that a proper system for the scrutiny of European Union legislation should happen in this country in due course. During his reply to the recall debate on the organ donation regulation he said it was “manifestly the case” that there were “serious deficiencies” in our parliamentary system in this regard and he expressed the hope that an improved system would be put in place “in due course”.

In relation to the paltry nature of Oireachtas oversight of EU legislation, Alex White’s concern at the gaps in the system is clearly genuine.

The reality is the senior civil service does not want the bother that would come with an Oireachtas more active in relation to EU legislation. Ministers in the Government, and in all others since 1973, have shared this attitude or lazily acquiesced to it.

There is much confusion about national parliaments’ role in relation to EU legislation. It arises at two stages.

When EU legislation is being proposed, and before it is finalised by EU institutions, national parliaments can make observations. In the Oireachtas the function of monitoring impending EU legislation is assigned to whatever Oireachtas committee shadows the relevant department.

A review of debates since January shows that some committees have not discussed forthcoming regulations at all this year. On only a handful of occasions was forthcoming EU legislation referred to incommittee debates. In each instance the committee, sometimes after a short, private discussion, merely noted which of the draft EU laws it felt needed no further monitoring and identified those about which it wanted to be kept informed.

I could find no instance ofpublic discussion of the content of any piece of proposed EU legislation and no observations made to the EU institutions. I may have missed some but if such observations happen they must be rare.

The second role the Oireachtas is supposed to play is when EU legislation is being transposed on to Irish law. It is important to distinguish between two types of laws made at EU level. The first, regulations, has “direct effect”: once passed by the EU the regulations are law in Ireland. The second category is EU directives. These are binding as to the result to be achieved but leave most of the policy decisions about how the objectives are to be achieved to the national level.

Most EU directives are given legal effect in Ireland by statutory instruments signed by Ministers, rather than by primary legislation enacted by the Oireachtas. The regulations on organ donation are an example. Everyone speaking in the Seanad was in favour of the objectives set by the directive but some took issue with policy decisions the Minister made about how to achieve them.
There is no up-to-date list of statutory instruments available on the Oireachtas website. The Attorney General’s website shows 44 statutory instruments were signed into law in the first 5½ months of this year. These transposed directives dealing with a range of issues including passenger safety on buses and trains; aspects of parental leave; and the manufacture, marketing and sale of cosmetics.

I was unable to find any discussion of these regulations by any Dáil committee. The European affairs committee of the Oireachtas has been given a general function in relation to these instruments but nothing more than cursory references to them by that committee could be found.

Alex White pointed out on Wednesday that so many regulations were proposed by the EU that the Oireachtas could not debate all of them.

Nobody is suggesting that the Oireachtas could or should debate all proposed EU legislation or statutory instruments but it should be doing much more than the current rubber-stamping exercise.

Seanad engagement
Many Senators pointed out this week that the leader of the Seanad, Fine Gael’s Maurice Cummins, has been to the fore in imploring the Government to allow the Seanad to engage in the scrutiny of EU-related legislation in a more detailed way.

Indeed, during Tuesday’s debate Fine Gael Senator Martin Conway reminded us that Taoiseach Enda Kenny, at the 2009 MacGill Summer School, “spoke extensively about the role the Seanad could play in the scrutinising of EU directives”. “It is widely acknowledged that there is a void in our legislative structure in terms of scrutinising EU legislation,” he added.

He is correct. Our system for parliamentary scrutiny of EU legislation should be overhauled and strengthened, not in due course but as soon as the Oireachtas gets back to work in mid-September.

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