The Joint Committee met at 2.30 p.m. MEMBERS PRESENT: Deputy M. Harkin,  | Senator P. Bradford, | | Deputy M. Mulcahy, | Senator J. Dardis, | | Deputy A. Ó Snodaigh, | Senator D. Lydon, | | Deputy R. Quinn, | Senator A. Ormonde, | | Deputy M. Sexton, | Senator F. Quinn. | | Deputy D. Wallace, | | | Deputy J. Walsh, | |
In attendance: Deputy P. Carey; Deputy S. Coveney, MEP; Proinsias De Rossa, MEP; Ms A. Doyle, MEP; Ms M. L. McDonald, MEP; Deputy Eoin Ryan, MEP. DEPUTY B. ANDREWS IN THE CHAIR.  Ratification of EU Constitutional Treaty: Presentation.
Vice-Chairman (Deputy Andrews): Today we are discussing the ratification of the constitutional treaty. We will have a presentation from Mr. Alan Dukes who is well known to members. We also welcome Ms Jill Donohue, the research director of the Institute of European Affairs. I must make the usual comments about parliamentary privilege. I draw witnesses’ attention to the fact that while members of this committee have absolute privilege, the same privilege does not extend to them. Members are reminded of the parliamentary practice to the effect that members should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable. Mr. Dukes will give an outline of the current status of ratification of the constitutional treaty in the member states and the institute’s plans for dealing with it in Ireland in the coming months. Members should also have been circulated with the institute’s work programme for the period to June 2005. We can deal with all those questions once Mr. Dukes has made his presentation. Mr. Alan Dukes: Perhaps I might give a brief outline of where we stand regarding ratification, a series of seminars that we are running in the institute bringing in representatives of member states to discuss their views on it, and an overview of what the institute proposes to do from now on. I preface my remarks by saying that our mission in the institute is to think as deeply as we can on such issues, analyse what is going on and make that information available to anyone who feels that it might be useful. We would always be delighted to hear from the committee or individual members on any aspect of our work. So far, three states have ratified the treaty. The first was Lithuania, followed by Hungary and Slovenia. It is significant that the first three states to ratify the treaty are new members and that the very first to do so was one of the smaller ones. As it happens, we had the Lithuanian Foreign Minister among the speakers at our seminar last Friday. He was joined by the Deputy Prime Minister of the Slovak Republic, Mr. Pál Csáky, and Mr. Vladimir Müller who is Deputy Minister for Foreign Affairs of the Czech Republic. Our own Minister of State at the Department of Foreign Affairs, Deputy Noel Treacy, was also there. He made it clear that he wishes to participate in all our seminars. That kind of participation we find very valuable. I will give a brief résumé of the main points made by the speakers at that seminar. The Deputy Prime Minister of Slovakia made the point that the constitutional treaty was a natural, important and logical next step in building Europe. In particular, he insisted that the treaty was not the foundation of any kind of European super state. On the contrary, it seemed to him that the treaty allowed respect for and development of the multicultural heritage of individual member states. He pointed out that there is concern in the new member states that they be regarded as equal partners in the enlarged European Union. He particularly stressed the fact that the history of his own state and that of the other new member states, apart from Malta and Cyprus, under communism did not in any way detract from their European identity. Each of the three speakers made the point, frequently overlooked here, that all those new member states have a substantial history, both political and cultural, and have a great deal to offer such discourse in the enlarged European Union. The Deputy Prime Minister's country has endured a totalitarian regime, and for him the European Union constitutes a unique and different route. The Deputy Prime Minister believes that the institutional changes in the constitutional treaty are vital to allow the enlarged Union to function satisfactorily. Echoing a view that we have taken ourselves in the institute, he made the point that the constitutional treaty as it now stands, adapted to deal with the governmental needs of 27 member states, including the current applicant states, Bulgaria and Romania, can probably also deal with Croatia. There is further work to be done in the Balkans, and Turkey is a candidate. If we reach the point where all those countries have resolved the issues concerned, I believe it will be necessary to re-examine the treaty. However, it is essential to point out now that the issue is one for a future date rather than today. This current constitutional treaty does not attempt to deal with that. The Foreign Minister of Lithuania, Mr. Valionis, made the point that in his country the treaty debate overlapped with the negotiations for accession. In Lithuania the two were seen to be very much inseparable. That was one of the reasons they proceeded so quickly to ratification. He is proud of the fact, quite rightly, that Lithuania is the first state to have ratified the treaty. In his view both accession to the Union and the constitutional treaty consolidate democracy and sovereignty while putting them into a broader European context. He used one phrase which a number of people at the seminar found quite striking. He regarded the EU as a valuable Union “that can accommodate the big member states and protect the small member states”. He laid some emphasis on what he regarded as the importance of the fact that the constitutional treaty facilitates a greater consolidation of the European Union’s action in the sphere of foreign policy, where he said “we have little to lose and much to gain”. He pointed out in particular that the European Union had been in a position to play a substantial role recently in Ukraine. He also looked forward to the provision in the constitution for teamed Presidencies which will see Lithuania partnering Greece and Ireland in the Presidency of the Union from 1 January 2013 to the end of June 2014, assuming these changes come into effect. The Czech Deputy Minister for Foreign Affairs again made the point that this constitutional treaty, in his view, puts the seal on the work done in the new member states to put the political and economic realities of the past behind them and to participate in a new remade European Union. Opinion in the Czech Republic is divided on this issue. There were some familiar echoes in what he had to say. There are those who believe that sovereignty shared is sovereignty surrendered. On the other hand, there are others who believe that sovereignty shared is sovereignty gained within the European Union. The template the Czech Government is using to assess this treaty really has to do with the question of whether it delivers a stable legal space for a dynamic but predictable development of the Union. The Czech consensus is that it does. The government takes the view that participation in the Union for citizens of the Czech Republic is a means of extending rather than limiting their rights and that the sharing of sovereignty extends their rights. That is a brief overview of the presentations at that seminar. We were addressed by the Minister of State at the Department of Foreign Affairs, Deputy Treacy. I will not take the liberty of paraphrasing his views here which are well known to the committee. The next seminar will take place on 2 March. We will have the Spanish Minister for European Affairs and it will be interesting to hear what he has to say because Spain will hold its referendum on the treaty on 20 February. We will have the Spanish Minister for European Affairs hot from the hustings, so to speak. He will be joined by the Maltese Foreign Minister, Dr. Michael Frendo, the Greek Minister of State for European Affairs and our own Minister of State, Deputy Treacy. We plan to complete that series of seminars by the middle of the year, by which time we will have had the opportunity to get an overview from all the member states as to where they stand as regards the treaty. As the committee knows, we published an analysis of the treaty last October. It was presented to the committee some time ago by Dr. Garret FitzGerald. We are now preparing a series of eight shorter publications dealing with particular parts of the treaty. One of them will deal with institutional relations. That will focus on changes in the voting arrangements, Council configurations, the role of the Presidency, including the Presidency of the European Council, the Commission, and the EU Minister for Foreign Affairs and Enhanced Co-operation. Another one will deal with the issue of the primacy of EU law and will be looking at the significance of that in the constitution as well as issues of sovereignty and transfer of competence and will examine the question of whether the constitutional treaty alters the status quo in any way. Another will deal with the Charter of Fundamental Rights, examining its significance and that of its horizontal clauses as well as issues that may arise in the context of whatever instrument is decided on as appropriate for the European Union to accede or participate in the European Convention on Human Rights. Another one will deal with issues of freedom, security and justice, asylum and immigration, personal data protection and information sharing, mutual recognition in criminal procedures and all the issues surrounding them. On the external relations side, particularly in regard to the new EU neighbourhood, the issues as regards freedom, security and justice are examined. A further one will deal with issues of security and defence in the treaty, how they are dealt with and the structures that have been put in place. We will have a publication on social Europe, examining social provisions in this treaty arising as regards public services, globalisation, privatisation and all those issues. There will be a publication on national parliaments and the democratic life of the Union, issues of parliamentary legitimacy, and the involvement of national parliaments in the work of the Union both in terms of what is provided in the treaty and what national parliaments decide or do not decide to do in their sovereign judgments as regards their involvement in the preparation of European legislation. These will be short pamphlets in a clear bullet-type style. They will be useful for people who are interested as a guide to what is in the treaty. I would like to take a moment to give the committee a brief view of our analysis of the treaty. I believe there are a couple of matters which are important to bear in mind during the debate, not least that there is no comparator for the European Union anywhere in the world. From the viewpoint of political analysis, that in fact means that any new step the European Union takes is a new adventure. Each step is prepared as carefully as possible in advance. However, each step will ultimately contain some unknown dimension. So far we do not seem to have done anything dreadfully wrong. Matters seem to have worked out quite well. However, it is important to bear in mind in the debate that there is not another body like the EU to which it may be compared. That means comparisons made with other systems are of very limited value. We need to employ empirical political judgments in looking at these issues more than anything else. It seems to us there are two fundamental questions to be answered when we look at this treaty. The first is whether the European Union with 27 member states will be better governed with this constitutional treaty than it would be if we were to continue with the Treaty of Nice. It was certainly the intention of the Convention and the Intergovernmental Council to bring about that result. Our view is that this is the case and that EU 27 would be better governed by this constitutional treaty than they would be with the Nice treaty. Another important fundamental question is whether governance of the EU within this constitutional treaty will be more open to democratic influences than it would be under the Nice treaty. Again, it seems to us having examined the provisions of this treaty that the answer to that is yes. There is a rider to that answer, which is that the openness of the system of governance in the EU to democratic influences depends far more on the activity of democratic actors than it does on the institutions of the EU. It seems that there is an open door, but very few democratic institutions in the EU ever bother to look to see whether that door is open. Perhaps that is an issue for another day. From our analysis of the treaty, it will deal with the governance of a 27 member state European Union and it could probably deal with an EU that includes Croatia. After that, there are imponderables about Serbia and Montenegro, Macedonia and Kosovo, about which we cannot predict. We will be opening negotiations with Turkey during the course of the next year. If all those negotiations come to a fruitful conclusion, it seems inevitable that we would revisit the treaty. All that is quite some distance away and it should not influence the way that we deal with this particular treaty. The provisions of the treaty on the Presidency of the European Council need to be examined. There will now be a two and a half year Presidency which is renewable for another term, in order that a European Council Presidency with an effective mandate of five years is a possibility. The European Parliament makes its own decisions on how it organises the Presidency, but it seems to have got into the habit of splitting the Presidency into two terms. The European Commission Presidency has a mandate of five years. All this means that the Presidency of the European Council will gain in influence vis-à-vis the other two Presidencies. The EU Minister for Foreign Affairs is a new institutional development in this treaty. We will have a person who is a Vice-President of the Commission who will bring proposals from the Commission as a college as well as proposals from the Commission acting as a wise body to the Council of Ministers. Where these are matters within the Commission’s competence, that person who is bringing the proposals to the Council will also chair the Council and will therefore have to mediate the debate. That person will find herself or himself in the position of reporting back to the Council on what has been done to give effect to decisions in the Council. That person will be pretty busy, but will also have a position of some considerable influence because that person will also be there for five years. That combination of functions is an innovation in the political systems of all our member states and is one that will be an interesting exercise to watch, assuming that the treaty is ratified. That is a very broad overview of where we seem to be at the moment. In the Institute of European Affairs, we are always ready to participate in debate and examination. Members of this committee are more than welcome to attend our next seminar on the constitutional treaty on 2 March. We are the first institute in the European Union to organise a seminar on the proposed external action service. That service was proposed at this committee and we believe it is quite an innovation in foreign policy activity. That will take place on 17 February at 9.30 a.m. at the Institute of European Affairs. We will be happy to see any or all of the committee members there. Vice-Chairman: I thank Mr. Dukes for his presentation. The Chairman, Deputy Deasy, has a particular interest in the area of external action. I will pass the invitation on to him as well as other members. Deputy Quinn: I acknowledge that this is the largest attendance at the Joint Committee on European Affairs for some time. I welcome my colleagues who are semi-detached from the Oireachtas, especially my constituency colleague, Deputy Eoin Ryan. That there are six MEPs out of the 13 who could be here is a fair indication of the interest that they retain. I welcome the work that has been done by the institute and its publication. I also welcome the announcement that it proposes to address a series of issues of particular concern. It listed about eight issues in all. I wish to comment on two, about which I have been hearing on the doorstep and about which colleagues have expressed concerns. We have had treaties in the past, but this is the first constitutional treaty and there are fears about that. Any Irish citizen can initiate an action that would challenge the legitimacy of particular legislation and vindicate his or her rights through the Irish Constitution, certainly since Cearbhall Ó Dálaigh was Chief Justice. This has made the Irish Constitution a much more relevant instrument of human rights and citizen’s rights than many other constitutions in other European countries. Some of my continental friends are amazed at the idea that an individual citizen can initiate an action. I would like Mr. Dukes to address the suggestion that if we vote in favour of this constitutional treaty, the Irish Constitution will be made subservient. There are those who say that if we vote in favour of this treaty, then Irish law will be secondary to European law. All this is a fear on the negative side. On the positive side, is the rebalancing between the role of national parliaments and that of the institutions of the EU, which are the Commission, the Council and the Parliament? For the first time, national parliaments have been given a yellow card to use on the institutions. If enough national parliamentarians felt that an issue such as education was something they could do better at national level, then they could collectively put up the yellow card and stop that initiative dead in its tracks. Will Mr. Dukes explain how he envisages that mechanism working? What is the tick-tacking arrangement? We know how to talk to ourselves, but how do we talk to Malta or Cyprus? If a proposal starts to surface, how does Mr. Dukes see the organic nature of the institutions being utilised to explore this expression of sovereignty? We are into uncharted waters. We are inventing new institutions. We cannot look over our shoulders and say this is how they do it somewhere else because there is no somewhere else. We are inventing this process as we go along. This committee will get the communication in the first instance. If we suddenly feel this is offside, how do we communicate, for example, with the Maltese European affairs committee? The timeframe is relatively short. Mr. Dukes might think aloud in this regard on the two issues — the constitutional treaty and its emotional and legal relationship with Bunreacht na hÉireann and the operation of the new, what I call for shorthand, yellow card mechanism in national parliaments. Mr. Dukes: They are interesting issues. As Deputy Quinn asked me to think aloud about them, I will, but I do not pretend to have definitive responses. On the relationship between the constitutional treaty and Bunreacht na hÉireann, it is worth reminding ourselves that there is a substantial history and comment from the European Court of Justice to the effect that past European treaties, from the Treaty of Rome to the Treaty of Nice, have all had the character of a constitution, that is, they were the basic organic law of the entity, whether the European Economic Community, the European Community or the European Union. It is important, however, to point out that the European Union treaties or constitution — whatever we call them — have powers and competencies only to the extent that this has been agreed by the member states and to the extent they have agreed by treaty to cede those powers to the European Union. Therefore, at any time, although it may occasionally require a court decision to define it, there is a limit to the powers that can be exercised by the European Union, and that limit has always been agreed by all the member states that have ratified whichever treaty is in force. The issue of the primacy of European Union law over national law is not new. The first question put to the Irish people in a referendum on our involvement in the European Community centred on getting agreement from the people, which they gave, to hand over such powers as were necessary to implement the treaty in front of them, not more or less. As I am a simple economist, not a lawyer, my words may not be exact but, to paraphrase, since that time there has been a compact between the Union and the member states, occasionally defined by the court in the same way our Supreme Court tells us in the final analysis what the Constitution means, as to where the powers of the member states stop and the powers of the European Union begin. Fundamentally, there is no change in that position to the extent that this treaty has any effect on the constitutions of this or any other member state. It is defined in the treaty and is a knowable quantity. This treaty creates virtually no new competencies for the European Union. Calling it a constitutional treaty is something that seemed to be important in the first instance to those who participated in the work of the Convention. While there is a far greater expert on the work of the Convention present, my impression is that they felt it was important to call it a constitutional treaty to make it clear that this is the basic organic law of the expanded European Union. It was not in any sense to elevate it over or impinge on national constitutions but simply to say that, when we talk about the European Union, this is what sets out the law and the limits of the competence of the Union. I hope this thinking out loud has been at least relevant. On the other issue, what Deputy Quinn called the yellow card provision in the national parliaments, it seems an important provision to members of the institute. As Deputy Quinn has invited me to think out loud on it, my view is that there is a dimension to this about which we have not really thought yet in that national parliaments can object to a measure proposed by the Commission before it goes into the decision-making procedure of the Union if they believe that measure is excessive, inappropriate or goes beyond what they understand the treaty to mean. If this is the case, they can mark their disagreement. COSAC, of which this committee is part, is the group of the European affairs committees of the parliaments of member states. It has been in existence for some time and seems to be one of the first channels. However, we need to take account of Deputy Quinn’s point that time is of the essence. Perhaps a less relaxed way of doing business than normal in COSAC might be appropriate in this regard. The other element I think important is as follows. In most of our national parliaments in the 25 member states — I hope it will soon be 27 — the government has a majority. Therefore, the parliament will have to get some kind of assent, tacit or explicit, from the government as to the view it takes. However, this also suggests that the governments will find they have another channel to use if matters look difficult. By the time a proposal is formally put, governments will have been involved in the committee work and consultation that goes into the making of a proposal and will have a fair idea of its extent and what its effects will be. If any government is of the view that it has not succeeded in getting agreement on the points it wanted to agree in that process, it has another option when the matter comes to the national parliament. That seems to be a gain in the openness of the system. I have believed for some time, even as an Oireachtas Member, that if there is a democratic deficit in the European Union, it is alive and well and living in national parliaments. Very few of the national parliaments of the EU — I would not include the Oireachtas among the stars — have really exerted themselves in regard to European Union legislation. In the hierarchy, the Danish Parliament is the most active in that regard followed in order by the Dutch Parliament and the UK Parliament, although in the UK the House of Lords does the business. Other national parliaments have, on the whole, tended to take a relaxed or detached view of the process. Nothing in the current treaties or in the constitutions of any of the national parliaments requires matters to be so. There is nothing to prevent any national parliament from taking a more active or muscular approach to the development of Union legislation. I make this observation as a former Member of this House and former lobbyist, and having worked in the Commission. It has been my experience that it is much easier to find out what is being planned or cooked up in the Commission in Brussels than it is to find out similar things about most Departments in Dublin for as long as they are here. It might be even more difficult to find out what they are planning if they are moved to Killarney or places like that. There is a new opportunity in this treaty for both parliaments and governments to act. It can also be taken as an incitation to member state parliaments to do something that was open to them up to now but which they largely, for reasons best known to themselves, failed to do. At the end of April we will be organising, in conjunction with the law faculty in UCD, a seminar on the role of national parliaments in the member states in regard to legislation. This seminar will involve participation by representatives of other member states. Deputy Mulcahy: I am delighted Mr. Dukes is here today. It is important that we have a body examining all these issues in a critical way. I am particularly pleased about the last point in the discussion as it is one under consideration at COSAC, which comprises committees of parliaments of the EU. At the last meeting of this body in The Hague, there was a detailed discussion of this issue in the projected context of a treaty that is ratified by all member states and implemented. France proposed some type of experiment in this regard. Those of us who are members of the Oireachtas Sub-Committee on European Scrutiny receive all the documentation and have always wondered about the modalities of sharing our doubts and thoughts with other EU committees of the national parliaments. This would not be easy as it involves different languages and time zones. The Institute of European Affairs might work with the committee to formulate our ideas in terms of sharing information with other European affairs committees. I have suggested on previous occasions some form of regular audio-visual link-up. Committees in all member states should receive particular Commission proposals at the same time and hold discussions about them within the same timeframe. We are only at the beginning of this process. I particularly welcome the yellow flag proposal in the treaty, even though some have claimed it is somewhat weak and does not amount to a right of veto. However, it does provide for a strong right of consultation and input, which is incredibly important in a context in which the EU seems to be doing too much and to be unaware of its core competencies. A dog stops eating once it has a good meal but the EU seems to go on, trundling out regulations at an enormous rate. People are concerned about the legislative proposal to ban natural medicines, for example. Proinsias De Rossa, MEP: It is not proposed to ban them but to regulate them. Deputy Mulcahy: We now have markings on eggs, although there was never a demand for such. Proinsias De Rossa, MEP: There have been markings on eggs for years. Deputy Mulcahy: It is important that the EU should adopt an attitude of less is more and focus on its main areas of activity, including economic development, the environment and social rights. It should not stray too far from these core competencies. I welcome the discussion on subsidiarity, an issue to which we must give serious consideration. Mr. Dukes will be aware from his time as a politician that we must sell these issues to citizens. The Treaty of Nice, although not initially accepted, had a clear and understandable selling point in terms of the requirements for enlargement. What are the points Mr. Dukes would make on the doorsteps in Ballyfermot, Cork or Kerry to convince voters of the merits and importance of the treaty and to secure their support? Mr. Dukes: I am tempted to suggest what might relate to Deputy Mulcahy’s objection to the rush to regulate. I agree this is a problem. It has been done in regard to cigarettes, and crisps and burgers are apparently next on the agenda. However, we should remember that these issues are not necessarily all born deep in the bowels of the Berlaymont in Brussels. Many of these ideas begin in national capitals. I hope the news does not get to Brussels about some of the proposals currently under discussion in the regulatory framework in Ireland. I do not like to give those in Brussels bad thoughts. I remember as a small boy that eggs were date-marked. The phrase was that one should go to work on an egg. There was an old and rather rude joke about the lady from the British egg board who woke up one morning and found that somebody was going to work on her. Senator Lydon: Happiness is egg-shaped. Mr. Dukes: Eggs have had many uses, as Galileo once discovered. The yellow card proposal will provide a valuable instrument for facilitating objections to excessive regulation, whatever its source. As I said, the inspiration for excessive regulation comes from within member states. Some genius in the US Department of Transport decided some time ago that airlines in that country should be obliged to keep a certain number of peanut-free seat rows in order to prevent any incidents of anaphylactic shock. The issue underwent public consultation and the regulators found to their amazement that the airlines, which did not want to accept such a regulation, had cleverly decided to simply stop serving peanuts. This is the simple way to do things. It is very much up to COSAC to devise a process in this regard, for which all the means are in place. Conference calling would seem to be a quick method for getting the scrutiny committees to identify areas of concern. In terms of slogans for the campaign, I have never been accused of being good at sloganeering on doorsteps. The reason we need this treaty is to ensure the good governance of an enlarged EU. The Treaty of Nice was necessary to allow enlargement to take place and the constitutional treaty is necessary to provide for governance of 27 member states. If a tag is required, one could say it is a “good governance treaty, made in Ireland”. That it was agreed during the Irish Presidency is an attraction. Deputy Mulcahy: However, such a slogan is unlikely to excite voters. Mr. Dukes: That is true. However, Deputy Mulcahy is gilding the lily somewhat in his suggestion that the argument that ratification of the Treaty of Nice was necessary for enlargement was what won the day in the second referendum on that question. Any slogan invented for this referendum campaign would necessarily be either incomplete or misleading. What really made the difference in the second referendum on the Treaty of Nice was that voters got the clear impression that people in the political system knew what it was about and cared enough about it to communicate that knowledge. It will be the same on this occasion. |