Legal loophole puts question mark over EU laws

By Mairead Lavery

The Government has failed in its attempt to legislate with retrospective effect legislation that pending a Supreme Court decision, could leave a question mark over thousands of legal orders made since Ireland joined the EU.

It appears that many EU Directives brought in by Statutory Instrument that have the potential to prosecute a criminal offence or impose fines could have no legal basis. These include legislation that applies to TB and Brucellosis testing and which set up the SIU.

The loophole came to light during a recent Supreme Court case brought by the State against three veterinary pharmacists. A ruling was made against the pharmacists but this was challenged by their legal team who claimed that the legislative provision under which they were being prosecuted was illegal. The Supreme Court has agreed to reopen this part of the case and expects to take written submissions in January.

The problem arises over the way in which European Community law is enacted in this country. EU law is superior to Irish law so when a Directive is handed down from Europe it has to be transposed into Irish law. This is usually done by Statute but also by Statutory Instrument. This is often a ministerial order that's formally laid before the DÄil and becomes law after 21 sitting days and isn't formally debated or voted upon by the DÄil. However, there is an important provision within the law that the Irish State cannot impose a criminal sanction by way of a Statutory Instrument unless it had been empowered to do so by primary legislation.

Ongoing

However, it's turned out that this has been happening for years and now thousands of orders which carry a criminal sanction without expressly being empowered to do so by primary legislation, are being called into question.

Last Wednesday night at the last session of the final sitting of the Dail, the Government attempted to rush through legislation that would retrospectively cover the legal loophole that's been in place since 1972.

The rushed nature of the legislation was obvious as no copies of the Bill called the European Communities Bill 2006, were available beforehand and at no stage was it flagged to the party whips.

The move was opposed by the opposition parties and now is expected to come before the House in January.

Fine Gael want the section of the Bill that would apply retrospectively to all orders removed and have put forward an amendment to that effect. According to Denis Naughten, the Fine Gael Agriculture spokesman, should the Supreme Court find against the State, it has major implications for legislation dating back to 1972.

A bit rich

"It's a bit rich that the Government is now trying to legitimise raids and investigations retrospectively. The State assumed massive powers under some of this legislation and that power has been used in a heavy handed way by some authorities,'' he said.

Earlier the legislation had squeaked through the Senate by 21-17 in what was the closest vote this session.