Seanad Select Committee on Scrutiny of Draft EU-related Statutory Instruments debate -
Tuesday, 18 Jun 2024

I request that the clerk drop Senator Boylan a line on behalf of the committee to congratulate her on her elevation to the European Parliament. I wish her the very best.

I thank the Minister for being here on this particular day. If he will bear with me, I have to read the privilege note. We will then commence. I remind witnesses of the long-standing parliamentary practice to the effect that they should not criticise or make charges against a person or entity either by name or in such a way as to make him or her identifiable or otherwise engage in speech that might be regarded as damaging to the good name of that person or entity. Therefore, if their statements are potentially defamatory in relation to any identifiable person or entity, they will be directed to discontinue their remarks. It is important that they comply with that direction.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I also remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House campus to participate in public meetings. I cannot permit a member to participate if he or she is not adhering to this requirement. Therefore, any member who attempts to participate from outside the precincts will be asked to leave the meeting. I ask any member participating via Microsoft Teams to confirm that he or she is on the Leinster House campus prior to making his or her contribution to the meeting.

The Minister is very welcome to the meeting. It is a significant day in his career and, on behalf of the committee and on my own behalf, I take this opportunity to congratulate him on three decades of public service. Personally, I have always found him to be an absolute gentleman. He has been very supportive of me given my own background as a person with a disability. He has done great work to create equality within the transport network. He has promoted accessible transport not just in terms of cost, but also for people whose mobility is impaired. We wish him well in his future endeavours, which I have no doubt will be interesting and very fulfilling. With that, the Minister is welcome to the meeting.

I thank the Chair for his very kind words. It has always been a pleasure to work with him and with the other members of this committee. Looking around, I hope I am not saying anything untoward but we have soldiered together in these committee rooms and elsewhere for a good few years and it has always been a privilege. I look forward to what comes next. As I have said, public political life is very honourable but there are other ways of advancing your views and causes. I will continue to do that. I am very glad to be here with this Seanad committee to make the point that the work continues, a point I made when I was speaking outside Government Buildings today. I am still in office as Minister and will continue to be for as long as our new leader decides. In the interim period, I will continue to run both Departments and to work as party leader in Government to continue this Government's good work. In my mind, this is a well-functioning Government and that is because we have good collaborative mechanisms and a good work ethic.

To be perfectly honest, I wish I was here on slightly different business because, to a certain extent, what we are here to discuss is infringements in respect of the transposition of European directives. That is absolutely regrettable and not satisfactory. It is absolutely subject to analysis and criticism. I say easily and proudly that, if we were here on other aspects of our departmental work where we are delivering on time and at speed, I would be standing up for the Department but it is appropriate to be honest. Where infringement proceedings are taken against us, it is an example of us not having met deadlines. That is something we have to learn from and we have to make sure it is not repeated.

Rather than reading out a long script on the various legislative issues at hand, I will briefly and informally go through the two areas that are due for consideration within the Department of the Environment, Climate and Communications. The first has regard to the transposition of the advances in the European emissions trading scheme. As we know, this has evolved in many ways since it was originally designed 20 years ago and it has now started to function very effectively. In the last revision, we saw increased ambition and a move from a 43% reduction in emissions to a 62% reduction as part of the Fit for 55 legislative agenda. I believe we will achieve that. It shows the mechanism is working very well. There are three aspects of that where we have been in infringement. One has regard to the reduction in aviation free allowances, which is part of making sure that the industry plays its part.

The second is the CORSIA arrangements and how we have adopted them under the International Civil Aviation Organization, ICAO, direction to broaden out the application of carbon pricing to other continents and countries in the aviation sector. The third is with regard to the means by which we will allocate the sustainable aviation fuel, SAF, credits.

There were a variety of reasons we were delayed, but it was primarily due to legal issues that required further consideration, which meant that we did not meet the deadlines. We have since put in place and are concluding the measures so that we are no longer in infringement, but that is something that the Commission has rightly pulled us up on, and which we have to respond to and address.

Second, in the area of digital and electronic communications, the European electronic communications code was due to be transposed in December 2020 but was not done until June 2023. There is a lot of technical detail in regard to this. Much of this relates to legal interpretation and questioning of the mechanisms for transposition. The view of the Department had been that it would be possible to do that using secondary legislation but, having considered it, the Attorney General's office said it would require primary legislation. We delivered that in the form of the Communications Regulation and Digital Hub Development Agency (Amendment) Act 2023, but, as has been said, it only finally commenced in June this year. That does involve a fine to the State for the infringement, which is very significant in terms of a cost to the public purse of €4.5 million. The final payment must be made in the coming weeks. We are due to set out the mechanisms for the payment, which have to go to the committee next week. We are under time pressure and, as soon as possible after that, we must get a motion before the Oireachtas. We hope that will be approved and we can bring closure to the case so that we can move on and ensure we do not incur similar infringement cases in future.

There are various elements to the regulation. One relates to the standard chargers which have to be phased in by early 2026. There is a second issue in regard to the early warning system, which again is part of the directive. That is something which was delayed and that was why we ran into such difficulties. I regret very much that the infringement cases had to be taken and that we were late in the transposition. We are not the only country in that position. A number of other countries had similar experiences, but we have to learn from that and, to the best of our ability, make sure it does not happen again.

I thank the Minister very much. He has put his finger on the nub of the issue and also the reason for this committee, whose role is to scrutinise EU legislation, ensure that there are not infringements and that transposition happens in a timely manner. Unfortunately, we have suffered a good bit of pushback from Departments - not Ministers to a large extent but from officials, in terms of getting statutory instruments in a timely manner so that we can refer them on to the sectoral committees.

The Leas-Chathaoirleach to the committee describes it very well. The committee is essentially like an air traffic control system. We flag and channel statutory instruments to the sectoral committees for detailed scrutiny, if that is required.

I am conscious that the Minister must be gone by 7:45 p.m. so I will take all three speakers together, starting with the Leas-Chathaoirleach, Senator Mark Daly.

The Minister announced he is stepping down from public service after a lifetime in that role and giving voice to the environment, which is the issue of this generation and the world. We had the former President, Mary Robinson, in last week talking about the necessity for climate justice and climate action. When she was with us two years ago for Seanad 100 she said we had eight years to go. She is very consistent. We now have six years to go to reach the tipping point and yet it is not an everyday conversation and not enough is being done by all governments. I thank the Minister for his service to the State, especially on this topic.

The reason we asked the Minister to come in is because of the role of this committee. After 50 years of membership of the European Union, so many laws are being made by it, and they are being made through the less than exciting title of the transposition of EU directives by way of statutory instruments. It does not get less exciting than that. The reason we pushed for this committee to be established is that there was a lack of transparency. One of the answers we got back from the Minister and his Department is that the draft statutory instrument that we were going to scrutinise was not going to be made available. We wanted to put it up on the website. Now they are starting to refer to them as working documents, as opposed to draft legislation, and therefore the ability of the public, and also those who are affected by it, to scrutinise them is being removed. Our very specific ask is that the Minister, Deputy Ryan - and all Ministers - would allow the draft statutory instruments to be published by this committee as soon as we get them so that people can see them and then they will be sent on to the sectoral committees for them to scrutinise them.

I will give the Minister a very bad example. Not only did he outline all the problems that we are having at the moment, but we also have the draft statutory instrument that is supposed to be transposed into Irish law by 7 July. The Chair might remind me which one it is as I cannot remember.

I believe that involves the Department of Enterprise, Trade and Employment and does not directly relate to the Minister, Deputy Ryan, who is before us. The Minister could become a champion for this issue in his remaining time in Cabinet and help us with what we are trying to achieve. Is Senator Daly finished?

First, I identify with your words, Chair, to the Minister on this day. I thank him for many decades of public service, which I know are not yet quite finished. The sacrifice that is made in terms of personal life and family life of such a long record of service is very substantial indeed. I want to put on record that the country as a whole should be grateful to the Minister for the persistence and single-mindedness that he has shown in respect of the agenda items he has championed. I wish him well in whatever the next phase of his environmental career will be.

Could the Minister indicate when we were originally supposed to have the electronic communications directive implemented and operational in Irish law? When were we supposed to do that? The Minister says it was proposed to do it by statutory instrument but then at a later stage the Attorney General's office said that it had to be done by primary legislation. What was the second date, if one likes, as to when the Department received that information from the Attorney General's office? Could the Minister just comment on those two dates and where we are now in regard to that issue?

I will take both of those questions because they are about technical details. I thank both Senators for their kind comments. As they said, we are not finished yet. This Government still has a good eight months to run, potentially, and I hope to play a part in its work in whatever way I can.

With regard to Senator Daly's question, my understanding is that the committee had access to the original draft from the Department. My apologies, that related to another issue on our files, the common charter. Senator Daly asked about the electronic communications code. The Office of the Parliamentary Counsel, OPC, is the body that has responsibility for drafting that text and the final document will become the statutory instrument. As I understand, it is the OPC's advice that the draft should not be shared. I cited another example, the common charter, and in that instance the departmental draft was shared. However, when it gets to the OPC stage it is its analysis and view that the document should not be shared. We have to have cognisance of the OPC's legal rights.

With regard to Senator McDowell's question, this is a recasting of four directives so it is a consolidation of four existing communications directives. That was due to be fully transposed in December 2020. To answer the second part of the Senator's question, in March 2021 the Attorney General provided advice to the effect it was not permissible to transpose provisions by way of secondary legislation, as had been intended. In that instance, Ireland was already late with secondary legislation. That was not the only reason this infringement occurred but it would have been by a much shorter period. The difficulty we have with this is the length of time from December 2020 when it was due to be transposed to the present day. That is why the fine is so large. To answer the Senator's question, neither approach is satisfactory but that is the timeline.

I am going from my notes provided by the Department because this is quite legally precise. The legal advice from the Attorney General regarding the requirement for primary legislation was based on the Supreme Court decision, as the Senator may know, in Zalewski v. Adjudication Officer and Others in April 2021, which raised notable constitutional issues which further impacted the transposition. The Supreme Court decision set down new procedural requirements for non-judicial decision-making bodies when involved in the limited administration of justice. This decision necessitated the transposition group to entirely alter its approach to the transposition. Any attempt to transpose the code without complying with that decision would have been unconstitutional and legally infirm and therefore would not have constituted a proper transposition of the code in the event.

That is one of the reasons that, even with the Attorney General's decision in March 2021, it still took some time first to completely recast how we would transpose the directive and, second, go through all of the legislative mechanisms. The Senator will know from experience the drafting and passing of legislation through all Stages in the Houses can sometimes take time. Unfortunately in this case, that resulted in Ireland being in lengthy infringement.

To go back to the Minister's remarks directed to Senator Daly, do I understand it that the Department has no problem with the draft statutory instrument it sends to the Office of the Attorney General for refinement and transposition into its final form being shown to the committee but the Office of the Parliamentary Counsel is the body objecting to its work-----

I will give some background on the detail I referred to. The draft statutory instrument that was circulated to the Seanad EU scrutiny committee on 1 November 2023 was an earlier version which had undergone significant changes between that date and the date of request to publish, which was received on 26 February 2024. At the time of request to publish the draft statutory instrument, a final version was with the Minister for signing and it was considered in that case that the publication of the old draft statutory instrument would lead to confusion for stakeholders. It had been superseded by a further version which, I understand, had been published at that stage.

This comes back to a fundamental lack of transparency by Government. The way in which this is done is that Ministers are presented with draft statutory instruments that were never given to the Dáil, Seanad or relevant committee. Then we see fines being imposed and revisions of draft statutory instruments. As I have stated many times, until the human tissue Bill was introduced, the only organ donor legislation in the history of the State was signed by the Minister for Health in August ten years ago, with four weeks to go to the deadline, and the health committee, Dáil and Seanad never saw it. My concern is that it was not published in advance and was so badly drafted that it had to be revised two years later with 16 additional pages, which again nobody saw before the Minister signed it.

Our fundamental principle is that draft statutory instruments should be made available to this committee at an early time and it should not be the case that no time is given at the relevant committee. The idea that an earlier version would lead to confusion is not a great response from the Department, in that any version is better than no version. The public does not have great faith in this, arising from the fact that there is no scrutiny of EU legislation, which accounts for far more legislation than all the legislation passed by the Dáil and Seanad every year.

I agree with the Senator. The problem in my mind is a timing one. When we end up with Ministers signing documents that may not have had due scrutiny at the very end, it is often because we do not have time. That is not a sufficient excuse. We have a difficulty in that the volume of European legislation coming through is beyond compare. Smaller countries find it more difficult. We do not have the scale in the Civil Service. It is also a resource issue within the OPC.

I am sure Senator McDowell, in his former role as Minister, will recognise that one of the greatest difficulties for Ministers is often getting the resources for drafters to be able to do draft legislation in a timely manner. There is often a queue. Therefore, legislation that is on an emergency basis or where there is a risk of infringement may go to the head of the queue but we end up with circumstances where there is no possibility of timely and effective oversight. I do not disagree with what the Senator is saying. It is primarily a resourcing issue and that issue will increase because the volume of European legislation seems to have increased in recent years. We have not transposed most of the 55 pieces of legislation. In the past three years, 23 major directives have been agreed and we will have to transpose them in the next three years. The biggest challenge or constraint is the drafting resources available in the OPC and Departments. That is a problem.

I join in the remarks made by the Chair and colleagues in congratulating the Minister on three decades of excellent public service. He has given really principled, committed and thoughtful public service. I had the privilege of being the Seanad spokesperson on communications, energy and natural resources during one of the Minister's previous ministries some years ago. We worked on the Broadcasting Act together and the debate on this huge legislation lasted days. I found it so pleasant to work with the Minister on that. There were lots of amendments, including from us at the time. It was a major process. It has always been a pleasure to work with him. He has done so much good. His work is so principled and so visionary. He has altered the perspective of so many people in this country and changed awareness in a dramatic way over three decades. It is quite incredible how there are virtually no climate deniers left. They were in the majority when he started. He has achieved so much, including practically.

I want to mention something that the Minister has done that has had a great and beneficial impact on my community, and it was alluded to in a different way by the Chair at the beginning. I am so happy about the way the Minister has increased the number of buses between country towns. That has had an enormous impact on the lives of ordinary people. For example, there is now a bus service between Dundalk and Cavan town six times a day, which is an incredible change from virtually none or one every other day. As the Minister will be more than aware, there is the potential to have more bus services in that context. Also, fares for public transport have been reduced. The Minister has done things that impact in a huge way on ordinary lives and at the end of the day that is what we are all about.

I thank the Minister for all of that. As has been said, our function here is to scrutinise statutory instruments, ensure efficient and early transposition and good outcomes for people and, as the Leas-Chathaoirleach said, to bridge a demographic deficit that exists. It is crucial to bridge that democratic deficit, particularly in the context of so many new prevailing political winds. That is all-important and that is our function.

I wish to ask the Minister an off-field question. In the ones that he has cited so truthfully as failures, such as the emissions trading scheme and the electronic communications code, is there a real prospect of financial penalties? If so, at what level and when? Have there been any already? That is a critical question of interest to a lot of people who have been watching us tonight because there is a cost factor in financial terms.

On the draft SIs, the Minister made an interesting point about the difficulty with staffing. In addition, there is the fact that 23 directives are on the assembly line and almost stalled. Can the Minister elaborate on the staffing issues? Can we deal with the issues? Rather than this committee decrying the past we must adopt a futuristic view and start to see how can we improve from now on rather than having too much retrospection, although retrospection informs the present. There is no great variation in what we are all saying. We really want effective implementation. I look forward to the Minister's response.

I wish to raise an issue of interest to the Minister. Am I correct, Chairman, that we await the draft statutory instrument on corporate sustainability reporting? The final deadline is 6 July. Obviously this committee would like the relevant sectoral committee to be given time. We have asked the Secretary General of the relevant Department to come in. The SI relates to environment issues, which are issues all close to the heart of the Minister. We asked officials from the relevant Department whether any of the four big accountancy and auditing companies carried out lobbying about the wording and phraseology. I would be surprised and amazed if there was not.

The deadline is 6 July, which is literally around the corner yet we do not have the draft statutory instrument here this evening and the relevant committee does not have it. The draft statutory instrument comprises more than 100 pages and one can imagine the effect it will have. Are there going to be companies green washing? The phraseology includes words like "may" and "shall" but nobody has this document. It is a failure of the system that such an important piece of legislation on the environment is not available for scrutiny by the Oireachtas and for transparency purposes.

I do not dispute the significance of this issue but the Minister for Enterprise, Trade and Employment, Deputy Burke, will have to come in and account for that.

As we are no longer in breach of the EU's emissions trading scheme, there will not be infringement fines. Similarly, with regard to the issue on the communications side and the common chargers, because it has been transposed there we will not be in infringement.

On the transposition of the European electronic communications code, as I said, there was a very lengthy period from December 2020 through to this year when we were not in compliance. On 14 March 2024, the European Court of Justice imposed a lump sum fine of €4.5 million. There was a daily fine was accrued over the period. Now that this has been transposed, it is just a matter of arranging the final payment, which we need to do quickly.

The Minister referred to resourcing difficulties in terms of drafting. One of the things, going back to my own time as a Minister, that could be mentioned in this context is that it was very easy, prior to Brexit, for staff in an Irish Department which was looking at a European directive to lift the phone and call their opposite number in London and ask, "What are you doing on this? Show us your working papers", and they got them. In other words, they got an outside agency's view on the matter and a little bit of cogging went on.

It is a special day for the Minister and we do not want to detain him any longer than necessary. We extend our deep appreciation that he came here today given all the events that have happened. We have had a very useful and worthwhile engagement. Again, we wish the Minister all the very best going forward.

I thank the Chair. I forgot to respond to Senator O'Reilly. I have fond memories of the time he mentioned. As I said to my officials as we were coming in, this is where the hard work is done. These committee rooms are important. I very much have a similar recollection of enjoying working with the Senator in those days. Long may it last.

I propose that the committee go into private session.

We will allow the Minister and his officials to depart.