Regulations under European Act can be signed without being examined by Oireachtas

The 1972 European Communities Act is a very significant piece of legislation. It was enacted to enable Ireland to comply with the obligations required under membership of what was then called the European Communities.

The Act gave ministers wide powers to enact regulations necessary to ensure Irish law complied with the requirements of European law. Thousands of these “European Communities” regulations have since been signed by ministers over the last four decades, covering all kind of policy areas.

These regulations are very seldom if ever discussed by the Oireachtas before being enacted and, although they can actually be annulled by the Dáil or Seanad, this has also never been done in the 40 years since the 1972 Act. Many of these regulations have a more significant impact on people’s lives than the legislation passed by the Oireachtas itself but ministers can sign them without consulting at all with the Dáil or Seanad.

The European Union (Quality and Safety of Human Organs intended for Transplantation) Regulations 2012 signed into law by Minister for Health James Reilly on August 27th last year is a case in point.

This regulation is the first law in Ireland relating to organ donations but it did not receive any parliamentary scrutiny before it was enacted and there was only cursory consultation with the sector.

Interestingly, the 1972 Act includes a provision that if either house of the Oireachtas is in recess for more than 10 days, and one-third of the members of that house sign a request to do so then the house must reconvene and consider whether it will annul the regulation.

20 signatures
On September 6th, 2012, when the Seanad was well into its long recess, Senator Mark Daly gathered more than the necessary 20 signatures from his Seanad colleagues seeking that the Seanad be recalled to debate the organ donation regulation. Daly had been nominated to Seanad Éireann by the Irish Kidney Association, which had and still has serious concerns about the content of the organ donation regulation . As it sees it, the regulation in this country only does the bare minimum required from the EU directive which it implements. In particular, it says the system in the current Reilly regulation is flawed because it splits responsibility between the Health Service Executive and the Irish Medicines Board. The main purpose of the EU directive, it feels, was to provide clear leadership by means of a single competent authority in each member state with designated responsibility. The split responsibility in Ireland it says means that no one will be responsible. The need for improved infrastructure within the health services for encouraging and managing of organ donation is something all practitioners in the area say is badly needed and which they all feel could have a transformative effect on transplant figures.

Daly's call last September for the organ donation regulation to be discussed was supported not only by his Fianna Fáil colleagues but also by the Sinn Féin senators and six of the Independents. Notwithstanding this and the provisions of section four of the 1972 Act, the Seanad authorities decided not to recall the Seanad to debate the regulation because they took the view that the section of the 1972 act may be unconstitutional. However, when pressed on the issue, the Seanad's committee on procedure and privileges later in the year sought its own legal advice. It seems this advice was that there was no case law to suggest the provision in the 1972 Act was unconstitutional and the Seanad should amend its standing orders to expressly allow for the procedure Senator Daly had sought to invoke.

Indeed when originally enacted, the Act provided that ministerial regulations would only have effect if confirmed by the Dáil and Seanad. However, within a year, this was changed significantly to provide that ministerial regulations would have statutory effect unless the Dáil and Seanad pass a resolution annulling them. Since 1973 neither house has done that.

Having failed to get the Seanad recalled last August, it could be argued that Daly could have had the regulation debated at some point over the last 11 months when the Seanad was sitting. The reality in our system, however, is that, apart from limited private member time, it is the government majority which decided the business of both houses and they would simply have voted down the suggestion the regulation be debated. Daly put this to the test last week when he sought a debate on the organ donation regulation in the Seanad – only to have it voted down by the government parties.

Another shot
The Seanad can still annul the regulation and compel the Minister to put in place a better one provided it does so before August 27th. Daly is making one further effort to have the Oireachtas exercise one of the few legislative muscles in has in relation to statutory instruments before this deadline. By August 6th, after after the 10 days' recess have passed, it is likely he will have gathered at least 20 senators to again seek for the Seanad to be recalled. Assuming the Seanad authorities follow the better legal view, the house will sit near the end of August specifically to discuss this regulation.

As well as highlighting the issue of organ donation and the defects in the infrastructure, such a special session would also spotlight the otherwise ineffective Oireachtas oversight of European legislation.