Joint Committee on European Union Affairs

07/Jun/2012

Prelude

Role of National Parliaments in European Affairs: Discussion

The Joint Committee met at 11.30 a.m.

MEMBERS PRESENT:

 Deputy Timmy Dooley,  Senator Fidelma Healy Eames.
 Deputy Bernard J. Durkan,
 Deputy Seán Kyne,
 Deputy Joe O’Reilly,

 DEPUTY PASCHAL DONOHOE IN THE CHAIR.

Vice Chairman:  I thank everybody for attending. We are in public session and I remind members to ensure their mobile telephones are switched off. Apologies have been received from the Chairman, Deputy Hannigan and Senator Healy Eames.

The first item on the agenda is a discussion on the role of national parliaments in European affairs by Dr. Gavin Barrett. I am genuinely delighted to welcome Dr. Barrett to our meeting here today. He is from the UCD school of law. Dr. Barrett will be a familiar face to many us, particularly from the previous term in which he was such a regular attendee at committee meetings. At times he himself was virtually a member.

Deputy Timmy Dooley:  We should bestow honorary membership on him.

Vice Chairman:  Indeed.

Deputy Timmy Dooley:  That would be a penance.

Vice Chairman:  No, it is a good thing. He always gave impartial and very rigorous and accessible advice, which is why he was invited back in again so regularly.

His expertise was not only recognised by this committee; he was also the second recipient of the Oireachtas Parliamentary Fellowship, which was established in 2009 to mark the 90th anniversary of the first meeting of Dáil Éireann. This was designed to advance the study of the Houses of the Oireachtas and Dr. Barrett has been researching the evolving role of the Oireachtas in European affairs.

As the committee will be aware, the Lisbon treaty gives national parliaments an expanded role and capacity in EU policy making and Dr. Barrett has done a large amount of work in this area to help us understand the additional powers that we have and how they can be best used, which is the reason that we invited him this morning to make a contribution to our hearings.

I thank Dr. Barrett for attending. I remind him, although it is extremely unlikely that this would be relevant to his testimony here this morning, of the notice on parliamentary practice which indicates, by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they are to give this committee. If a witness is directed by the committee to cease giving evidence in relation to a particular matter and the witness continues to so do, the witness is entitled thereafter only to a qualified privilege in respect of his or her evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and witnesses are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise nor make charges against any person or persons or entity by name or in such a way as to make him, her or it identifiable. With that in mind, I invite Dr. Barrett to make his opening comments.

Dr. Gavin Barrett:  I thank the committee for its kind invitation to appear here today. I also thank anyone who was involved in any way with the creation of the Oireachtas Parliamentary Fellowship and its administration, particularly Ms Maria Fitzsimons of the Library and Research Service. It was a worthy idea, a good way of creating links between the Oireachtas and academia. I hope that it will be reactivated as soon as is feasible.

I also thank anyone who co-operated with interviews, and anything like that, with me, not excluding the Chairman, because that helped. My work in this area is continuing. I am involved in three separate projects in the area at present and I probably will be knocking on all or any of the members’ doors in due course in that regard.

I have been asked to speak about the role of national parliaments in European affairs. What I was going to do was offer a few thoughts in that regard on the European aspect of matters generally and then focus on a few suggestions as to how we could augment the role of the Oireachtas in European affairs. I have been asked to keep it to approximately 15 minutes which I will do my best to do.

I suppose it is fair to say in the light of last week’s events we live in exciting times for students of European integration, if I can describe them as that. With the fiscal treaty, in particular, and the six pack, the issue of democracy in the European Union is moving squarely to centre stage once more. The European Union is now getting quickly to be in a position where it will exercise such strong influence on national fiscal policies that such is likely only to be acceptable if the European citizenry finds the European polity itself to be adequately and democratically responsive, in other words, decisions on issues will have to be underpinned by a strong democratic legitimacy.

The challenge at European Union level is rendered all the more difficult because although it is a system that has a great deal of formal legitimacy to it, in other words, we have seen successive interventions with each treaty designed to increase the level of democratic legitimacy at European level, and the level of checks and balances have been increased as time went on, they seem to have enjoyed limited success in supplying adequate social legitimacy.

Of course, the attempt to provide the European Union with adequate democratic answerability is one that has been going on for several decades. The founding treaties have very little to say about it for a number of reasons. It was not a conspiracy against democracy in any way. It was simply that the original treaties had a fairly narrow economic focus. The role of national parliaments was seen as something of a national affair anyway. Also, it was originally felt that in developing democracy at European level, the institution one should look to, first and foremost, was the European Parliament. That was the original view. Over time, with every major treaty, the role of the European Parliament has been increased but it does not seem to have adequately slaked the thirst for European level democracy. We saw evidence of that in the fiscal treaty debate because even though much of what was contained in the treaty was already in the six pack, which the European Parliament had debated extensively, it did not appear to satisfy many people. To my surprise, a few days before the referendum I found myself debating with a certain MEP who did not consider the adoption of the six pack to be democratic even though he had personally participated in the debates on it. He held a legitimate point of view but it was interesting to come across it. In any case, the focus has shifted from the European Parliament to national parliaments, or at least additionally to national parliaments, which have gradually been given more mention in the treaties in Articles 10 and 12 and a bigger role since the coming into force of the two protocols on the national treaties. The first protocol provides for extensive information rights in regard to legislation. We are told that knowledge is power but a flood of information can be difficult to deal with. We have to ask ourselves whether the information that is sent to the Oireachtas is being filtered in the most appropriate way. That might be an issue to which I will return in due course.

The second protocol is the subsidiarity protocol, with its provision for yellow cards and red cards. I will briefly outline how we have operated the subsidiarity protocol in Ireland. The protocol provides a means for national parliaments to intervene directly at European level to check for compliance with the principle of subsidiarity. It is a more radical departure than the first protocol but it remains to be seen whether it will have a greater impact. I happened to be carrying out my study when the protocol was first deployed in Ireland in a reasoned opinion on the common consolidated corporate tax base, CCCTB. To my knowledge this was the only occasion on which Ireland has sent a reasoned opinion, which reflects the fact that the early warning system has generally been little used across Europe or, at least, it has generated very few reasoned opinions. A mere 30 reasoned opinions were produced in 2010. The subsidiarity protocol depends for effectiveness on the internal systems of each state. In Ireland we are opting for a decentralised sectoral approach but given that it has not yet given rise to a reasoned opinion, we will have to reserve judgment on its prospects for success.

The CCCTB example produced a strikingly united approach within the committee established to deal with it. There was no left wing-right wing divide. That is interesting because it reveals that who the electorate voted for made no difference on the subsidiarity issue. If that is generally true, however, I think we have a problem because there would be no electoral incentive for parliamentarians to engage in this work. The committee’s use of the protocol generated considerable interest, with full attendance at the relevant meetings. This reflects the fact that across Europe the process will be driven by committees. However, it remains to be seen whether it is viable to rely entirely on sectoral committees in this regard. On the negative side, the wrong sort of interest was shown in some respects. This was reflected in the question posed by one parliamentarian who suggested that the committee was the first line of defence on the CCCTB. In other words, the tool of subsidiarity objections was being used to cloak substantive objections to a measure. I suspect that will happen frequently across Europe. It may give rise to an increased salience for the early warning mechanism but perhaps at the cost of the integrity of the system. In other words, it will be used to take a second bite of the cherry by states which want to block measures from becoming law.

The committee report was ratified by a plenary session in the Dáil which I attended. I was interested to note the poor attendance on the part of the Opposition. Attendance by Government Members was initially high. They had clearly been instructed to turn up, which was good to see, but the Chamber rapidly emptied. That was a rather depressing sight because, despite the importance of corporate taxation to Ireland, the issue lacked the ability to keep parliamentarians in the Chamber. This indicates that the subject of subsidiarity review lacks sufficient electoral bite for parliamentarians to generate interest. Opposition parliamentarians will generally only stay in the Chamber if there is some hope of embarrassing the Government. That appears to be lacking in the subsidiarity review procedure, which creates the risk that it may descend to irrelevance within the Irish political system.

In 2010, which is the only year for which we have data on the subsidiarity protocol, no less than 82 draft legislative measures falling within the scope of the procedure were sent to national parliaments. While 211 opinions in some shape or form were received, only 34 constituted reasoned opinions, in other words, allegations that a proposal or some part of it breached subsidiarity. As four of these opinions were not valid because they arrived after the eight week deadline or were not validly adopted, only 30 reasoned opinions were sent on subsidiarity grounds in 2010. Of the 40 countries or chambers listed in the Commission’s report for 2010, 23 did not produce an objection, whether valid or otherwise. We can see that it has not had a brilliant start.

I will broaden the discussion because it is necessary to contextualise the issues arising. No mention of the subsidiarity review provisions would be complete without taking note of process of the political dialogue established in 2006 through the so-called Barroso initiative, which is a privileged channel for communication between the Commission and national parliaments. The 2010 annual report indicated that 387 opinions were sent in this regard, which represents an upward trend. If one takes away the subsidiarity opinions there were 353 opinions, which is nonetheless a considerable number which dwarfs the number of reasoned opinions sent to the Commission. There is, therefore, some justification for arguing that political dialogue outranks the subsidiarity protocol in importance to member state parliaments.

The opinions submitted as part of the political dialogue are also submitted to the European Parliament, which takes them into account in suggesting amendments to draft proposals. One European Parliament official observed to me that a good result from the European Parliament’s point of view would consist of opinions rather than reasoned opinions. However, there are limits, even here, to that relative success. In 2010, a mere eight parliamentary chambers across the European Union accounted for three quarters of the opinions sent under the Barroso process. Ten chambers, including France’s Assemblée Nationale, did not send any opinion. A further five bestirred themselves to send in one opinion each. Overall, we can see a limited range of activity and patchy participation. In a quarter of parliamentary chambers, the seed of dialogue has not germinated and in more than one third the signs of life are tentative at best. These are relatively early days and I understand the 2011 figures will be better but nonetheless there are signs of problems. Furthermore, as the feedback from the Commission can be very slow and unsatisfactory, there is at times not much incentive for parliamentarians to engage actively in the process.

It is legitimate to ask why the subsidiarity control mechanisms were included in the first place. They were probably included in response to criticism about a lack of transparency and fears of European Union institutions increasing their power. However, if the Commission’s proposals are analysed they do not seem to contain a great deal of reality. The mechanisms are designed to ensure the absence of a problem in an area in which there is not really a problem, other than one of political perception. Mr. Andrew Duff, MEP, who was involved in drafting the subsidiarity mechanism, has described it as being something which although a necessary addition to the system, was not really intended to be used and more of what one would call a dignified part of the European constitutional settlement than an efficient one.

That does not mean the mechanisms are of no value at all. They have, particularly in Ireland’s case, motivated and stimulated parliaments into better equipping and resourcing national legislatures. They may constitute a transmission belt for dissatisfaction about particular proposals, such as the CCTV one. They may be useful in that regard. In reality it is very difficult to confine parliamentarians, as we have seen in practice, to the issue of subsidiarity and if it was intended to achieve that, I do not believe it will work.

There are many challenges and risks associated with the procedure. Getting national parliaments to organise themselves to cope with it is one. We will need to see how Ireland fairs in the coming year or two in that respect. Collectively it also presents challenges. The wheels have come off the process somewhat since COSAC dropped its role in picking particular proposals in order to, if one likes, stimulate debate on those. COSAC reactivating its role in that regard might be helpful.

The subsidiarity process needs to tread a happy medium between excessive interference with the legislative process on the one hand and indifference growing up in national parliaments to the whole subsidiarity process on the other. Of the two, the risk of disillusionment is the greater at the moment. I recently attended a conference which dealt with the subsidiarity process. The attendance at that conference involving national officials was half the attendance the previous year. Some disillusionment, for example from the United Kingdom Parliament, was expressed that no measure as of yet has ever been successfully challenged using the subsidiarity process. Returning to a point I made previously, it is not unduly pessimistic to say that in so far as the subsidiarity process works, it will have to work in the absence of a great deal of electoral interest on the part of the electorate generally. How well it can work in national parliaments from that point of view remains open to question.

I wish to discuss how we should augment the role of the Oireachtas in European affairs. In the research I have done, I have set out five, what I would call, “desiderata” for the Oireachtas in European affairs - five things the Oireachtas needs to do. First, the Oireachtas needs to deal with the pre-legislative phase at European Union level - in other words before legislation is formally drafted. Second, it needs to deal with the legislation once drafted. Third, it needs to oversee the adoption of measures in Ireland for implementing directives and regulations. Fourth, it needs a system to deal with a very considerable number of instances where European Union policy does not involve legislation at all. Fifth, as a result of the abolition of the National Forum on Europe, the Oireachtas needs to become an effective forum for the facilitation of a wider and deeper debate. It did that for the fiscal treaty. A sub-committee of this committee was the first forum in which that took place.

Most of those issues have been considered by the Oireachtas. In the previous Dáil we had the report by the sub-committee chaired by Deputy Donohoe, Ireland’s Future in the European Union: Challenges, Issues and Options. We then had the report of the joint sub-committee on the review of the role of the Oireachtas in European affairs chaired by the Minister of State, Deputy Creighton. Chapter 4 of that committee’s first report concerned the role of the Oireachtas. Its second report referred exclusively to the future role of the Oireachtas. I suppose what we can call the third occasion for the consideration of these issues has consisted of the programme for Government agreed in February 2011. The programme for Government is not the same kind of document as a parliamentary report - it is a plan of action rather than a discursive document. I suppose we can consider it the Executive answer to the agenda that was mapped out in the Donohoe and Creighton reports.

In some respects the proposals made in the programme fall short of the ambitious targets outlined in these reports. For instance, they contain no unambiguous commitment to the introduction of a scrutiny reserve, a system specifically recommended by both of those sub-committee reports. Nonetheless the implementation of the proposals in the programme for Government will represent a considerable empowerment of the Oireachtas in European affairs. Some idea of the overall ambition of the programme can be seen in its wording that “the Oireachtas must be given responsibility for full scrutiny of EU draft proposals, for proper transposition of EU legislation and for holding the Government accountable for the decisions it takes in Brussels.” Whether the means provided match that ambition is another question, but there is no doubting the ambition in that regard.

I will now deal with the five desiderata. On influencing pre-legislation at European Union level, if the Oireachtas wants to exert influence regularly and systematically at European level it must set up a system whereby it intervenes in debates conducted prior to the drafting of legislation at European Union level. That is where the Barroso initiative comes in. I have already reviewed that. In terms of the Oireachtas’s contributions there, of the 387 reports it mentioned, only three, 0.76%, came from the Oireachtas, which puts the Oireachtas in joint 18th place out of 27 European Union member states. The programme for Government undertakes that “The Oireachtas will devote a full week each year to debating major EU issues of concern to Ireland such as the [European Commission’s] Draft Annual Work Programme.” I know we recently had Europe Day in the Oireachtas. Of course while a debate of that nature is useful, we probably need a more comprehensive and year-round strategy regarding Commission reports and other issues. While that is not mentioned in the programme for Government, it does not mean that such a strategy is ruled out.

A further challenge exists, which is that of filtering out the more significant proposals and draft measures from the veritable flood of European Union documentation now arriving at the Oireachtas. Again while that is not addressed in the programme for Government, I feel such a filtration system is needed. Perhaps it is under construction.

A system dealing with the position once draft legislation is formally proposed at European Union level has two aspects. One is securing accountability for what Ministers agree in Council and the other is the subsidiarity issue, which I have already considered. Securing accountability for what Ministers agree in Council is and is likely to remain the main democratic function of national parliaments. In Ireland it is difficult to argue we have sufficient ministerial accountability. Under the heading of Oireachtas accountability, the programme for Government states: “All Ministers will be obliged to appear before their respective Joint Committees or before the Joint Committee on European Affairs prior to travelling to Brussels for meetings of the Council where decisions are made.” It is great to see such a commitment having been made and I would be very interested to hear how it is going because I am not sure how many members of this committee are members of sectoral committees. An enhanced role for sectoral committees can only be one half of the story because the experience across Europe indicated the need for a balance between centralisation and decentralisation in that regard. I would be interested to hear how members of the committee feel Ireland is doing in that regard.

Both the sub-committee reports I mentioned made reference to a scrutiny reserve mechanism. I have advocated something slightly different - a mandate system. However, neither a mandate system nor a scrutiny reserve system seems to have been committed to under the present programme for Government. There is some hint that it might be on the way in the sense that it states that “systems must be put in place to ensure that Ministers do not bypass the Oireachtas”. However, I am not sure how such assurance could be provided without the establishment of a scrutiny reserve. It is important to acknowledge that the Executive has a realistic fear over a scrutiny reserve system, regarding what I would be tempted to call the Kerry South and Tipperary North problem, which is that a decision of vital importance - not just at national level but also at European level - might be held hostage, in effect, to local constituency interests if such a system were introduced. It would create that possibility which would be very undesirable. In considering whether to introduce a scrutiny reserve system, the Government faces the issue of whether it wants to run that risk or whether a scrutiny reserve should only be introduced when the Irish political system is less localised in its nature. This is a genuine dilemma for any Government. It also needs to be acknowledged that a scrutiny reserve system would tie the hands of the Government more and it would also involve less flexibility at European Union level. However, if such a system is not introduced, the democratic accountability that exists at European level is questionable. This is a real issue that needs to be thought out. The Oireachtas sub-committee has given its views on this and I will be interested to see the Government’s final response on it. I will not say any more about the subsidiarity process as I have already mentioned it.

The programme for Government makes proposals with regard to a system to deal with measures adopted in Ireland to implement European Union directives and regulations. It concerns regulatory impact assessments being forwarded to sectoral committees so they can make recommendations on whether legislation should be adopted. I will also be interested to hear how this system works in practice. It does not solve the entire problem in this regard because it does not provide for the adequate following of any measures implemented via statutory instrument, which is an ongoing problem of democratic legitimacy with regard to European matters in Ireland. Unfortunately putting an end to it would involve throwing large resources at it but it needs to be seriously examined.

Often European Union legislation does not involve the adoption of legislation, such as with regard to the Common Foreign and Security Policy, the open method of co-ordination and social dialogue at European level. There is no systemised control with regard to this. One possible approach would be to bring the officials before the committee once every year to discuss, for example, the open method of co-ordination. Something needs to be done about this but no action is being taken.

With regard to a system for making the Oireachtas an effective forum for the facilitation of wider and deeper debate on European issues, the sub-committee established to examine the fiscal treaty was a great idea as was making available videos of the debates. A leaf could be taken from the book of the Institute of International and European Affairs whose website is extremely user-friendly and one can see the debates that have taken place. Greater ease of access for the public would be useful in this regard. Overall this committee in particular and its sub-committees have done good work in this regard. It was very hard for the Parliament to take up the reins laid down by the National Forum on Europe but some good work has been done in this regard.

Deputy Timmy Dooley:  I compliment Dr. Barrett for his ongoing assistance to the committee and in the general debate on European affairs, particularly in the Houses of the Oireachtas. It is useful for us to check in with academia with regard to this process. From a practical political point of view Dr. Barrett has raised many of the issues which concern us on a daily basis. This also came through the report to which Dr. Barrett referred published by the sub-committee chaired by Deputy Donohoe. We tried to develop the process to create better engagement with the public. We also consulted with people from the media to try to assist us in this and the common theme from their presentations was that unless we discussed the issues more regularly here it would be difficult to see how they would be discussed in local pubs. Unless the debate takes place in the Houses of the Oireachtas and in the general committee structure it will not find its way into the popular dialogue of the citizens. Therefore, Dr. Barrett is correct to identify for us the necessity to focus debate here. However, it must be meaningful and the difficulty for parliamentarians is that there is much going on and issues must seem current to us. Many of these issues are quite a distance away or will not become a reality for quite some time. While these matters should be important, because of their busy schedule parliamentarians get caught up in the day-to-day minutia relating to their capacity to get re-elected. Some of the issues we have been discussing relate to events that will happen in three, four or five years.

I take Dr. Barrett’s point on the necessity of forcing the issues to come before sectoral committees and I have always been a strong advocate of this. The Government’s initiative of forcing Ministers to come before committees is a worthy and useful tool in this regard because it forces the Minister to discuss what is on the agenda at the next Council meeting and encourages parliamentarians to have an input. I agree with Dr. Barrett on the necessity to have a scrutiny reserve. It is a way to empower Members and make them see it is not a matter of passing their comments to the Minister who then goes off and does what he or she decides to do.

Dr. Barrett spoke about local issues such as those in Kerry South and Tipperary North. To be honest there will always be one individual who will get caught up on local issues, but the size of the committees is such that a critical mass of members will not. I would not be as concerned about this as Dr. Barrett seems to be. The strong party structure alleviates this, as does the Whip system. One could also argue it is a strong Executive over a weak Parliament and this is also felt at committee level although committees rarely vote. By and large, with the exception of rare occasions, the Government will win and if it does not it will win the next time the vote is called. Therefore, an issue does not arise. The Executive should not be very concerned about this because of the existence of the very strong Whip system in the Parliament. However, it would give members a greater belief in having a say and for this reason it should be advanced.

Dr. Barrett has given us some very useful information. It is thought provoking and I am sure we will delve into it again. Does Dr. Barrett think as a Parliament we need to build an alliance with academia to the point where there is almost an ongoing relationship whereby we receive advice from universities or another outside source which is more focused on the processing of this information? Does an opportunity exist to have a more formal relationship with a particular institution? We have very strong links with UCD and other organisations. Would the entire process benefit from a more formalised relationship?

Deputy Bernard J. Durkan:  I welcome Dr. Barrett who has made considerable contributions to the work of the committee and its predecessors in recent years, which is very much appreciated. As Deputy Dooley stated, there is an ongoing need for some interaction with academic bodies so we can focus on and be critical of our operations and the methodology we use. However, I wish to dwell for a brief moment on another issue, namely, subsidiarity and the extent to which accountability and democracy are interlinked and working at the same time. The focus in Europe has changed and is now on re-nationalisation as opposed to the European concept as was originally envisaged. We have become so preoccupied with the undermining of our national identity, democracy and national parliaments, and there are reasons for this, that there is a tendency for individual member state parliaments throughout Europe to exert such a great influence as to remove the idea and general thrust of what used to be the European vision. It has gone by virtue of the fact that each member state parliament wants to exert the maximum amount of influence on policies and the outcome of debate. Where does one go in this case? How is equilibrium achieved? I do not think it can be done. There is growing evidence that many member state parliaments wish to be less influenced from outside by their colleagues throughout the European Union, the European Parliament and the European Commission and through discussion with colleagues in other national parliaments. This is beyond doubt. Unless thinking in this regard is reviewed, in a few years’ time each member state’s parliament will have its own version of European policy, including fiscal and economic policy, European democracy and European integration, and we will have nothing.

Dr. Barrett has mentioned a number of issues. A mechanism is required, but national parliaments and the European Parliament also need to participate. I have 11 or 12 appointments in my diary for today, including this meeting. It is the same for all Members. The classic point that is made is about the attendance of Deputies during debates on European issues in the House. There is no reason for Government backbenchers to participate. There is a reason for Opposition Deputies to be present. They are represented to a far greater extent than Government Deputies are, as Deputy Dooley will agree. For example, there were at least nine or ten submissions from the Opposition during this morning’s Order of Business and one from the Government benches. The relevance of membership is then called into question. Are we there for decorative purposes? One attends Conference of the Community and European Affairs Committees, COSAC, meetings. COSAC used to be effective. Dr. Barrett correctly identified those changes that have not been advantageous, as COSAC does not get involved as much as it used to. That decision was taken in terms of reviewing efficacy, etc. Why would one go? It requires taking a day out of one’s schedule. Often, one starts at 4 a.m. or 5 a.m. and returns that evening or two days later to an equally busy schedule. We must pace ourselves and spend our time in such a way as to be as effective as we can. If there is no window of opportunity, why would we attend?

I am relaying a discussion I had with my party’s Whip a few minutes ago. During the Order of Business this morning and yesterday, there was no need for a Government Deputy to be present. He or she would have played no function. Every committee member must have a role to play. Otherwise, why not just have one member speak on behalf of each group? In which case, there would be no reason to have extra members on the committee.

Dr. Barrett mentioned the relevance of the sectoral committees and their efficacy in dealing with EU affairs. My view on this subject is well known. One needs specialisation. In this context, I am referring to Members who are particularly tuned into European matters on a daily and weekly basis. My view did not prevail, but that is the way issues go.

My final point is on scrutiny reserve versus the mandate. It is virtually a veto. If a veto is given to member state parliaments, they will use it first rather than as a last resort. I do not know how this problem will be addressed, but it has developed in tandem with the transfer of power from the Commission to the European Parliament and the Council. The debate has been on the ideal structure to deal with the emerging situation. There must be centralised thinking at some level if we are to determine a vision for Europe. Such a vision is lacking currently. Parliament members in the Netherlands, France and smaller countries would provide a plethora of opinions at variance with one another, particularly at times of economic stress. Naturally, people who are under stress will try to protect their interests at the expense of others.

Vice Chairman:  Senator Leyden and Deputy Kyne are next.

Senator Terry Leyden:  I welcome Dr. Barrett and thank him for his work. This committee played an important role in the success of the fiscal treaty referendum. As Dr. Barrett stated, the submissions to the committee and the availability of its debates via video and so on gave people an opportunity to follow up on each issue that arose. I thank the Chairman, the Vice Chairman, the committee’s clerk, Mr. John Hamilton, and our support staff who have done a great deal of work behind the scenes. I am relieved that the referendum was passed, as I was not looking forward to another six months spent reviewing the outcome, which was the Vice Chairman’s experience.

Before the referendum, I read through documents on the Lisbon treaty. Under the chairmanship of the current Minister of State, Deputy Perry, in May 2008, we wrote a special report on the enhanced role for national parliaments in the Lisbon reform treaty. Unfortunately, the report’s provisions have not been implemented. On today’s Order of Business, I raised the question of the Seanad’s role. The Leader ensures our role is positive, but we should devote a certain number of hours to discuss current European Parliament and Commission issues at least once per month. Although those issues go before sectoral committees, the role of the Houses is not being utilised. Some matters, such as peat, turf cutting and the 99-year ban on eel fishing in the Republic which was not applied in Northern Ireland, could have been prevented from becoming issues. The ban is the type of legislation that was approved by the Houses, even though the European Commission decision did not necessarily call for a ban. It was for us to decide.

Parliament’s role under the Lisbon treaty, which consolidated treaties, has been ignored by the Government. Although we voted for the second Lisbon referendum, many of the agreements have not been implemented. I opened a page casually and read the bit about a European ombudsman being elected by the European Parliament, but has that happened?

Dr. Gavin Barrett:  Yes.

Senator Terry Leyden:  The provision has been implemented. Has Dr. Barrett scrutinised the second referendum to determine what promises and commitments have not been implemented? This meeting is specifically concerned with the vital role of parliaments. The Minister of State, Deputy Creighton, was supportive of the Seanad’s endeavours to hold debates in this context. I compliment her and previous Ministers who appeared before this committee and its predecessor to discuss the issues in question. We are receiving good ministerial co-operation. Ministers attend our meetings, outline their discussion plans at European meetings and report to us at our next meetings. In this way, the committee has an important role. However, we must take on a new role and increase our Parliament’s profile among our colleagues in other member states. It is important that we set out an enhancement programme. We will visit the German Parliament in the autumn, but it is vital that we have contact with our colleagues and that they visit Ireland to meet us. Given Europe’s problems, we must get to know one another better.

Deputy Seán Kyne:  I welcome Dr. Barrett and thank him for his contribution. I reiterate the comments of others, in that this committee showed its effectiveness during the debate on the stability treaty. We sat for eight sessions before and during the Easter recess. No one could claim that there was no forum, be it online or anywhere else, to hear the various arguments from the wide range of individuals who were interviewed and questioned, including ambassadors, academics, economists and so on. The role of national parliaments - I am sure this is happening across the EU - can unfortunately be used and abused by parliamentarians as we saw yesterday in the Dáil, in terms of their scaremongering and attacking the EU for political gain. Like other speakers, I commend the Minister of State, Deputy Creighton, on her attendance at meetings of this committee to explain to us the issues for discussion at the General Affairs Council prior to her attendance at such meetings.

Many of the issues arising at constituency level relate to failure of Governments to police and enforce directives from the 1970s or 1990s. European Court of Justice rulings have found against Government failure. The debate therefore turns to blaming Europe for the failure of successive Governments or of ignoring problems, leading to anti-EU sentiment based not on the here and now but on the past. Does Dr. Barrett believe that the change in terms of having each Oireachtas committee examine the various proposals of the EU rather than an enhanced EU affairs committee do so is good or bad in terms of proper scrutiny of EU proposals?

Vice Chairman:  I thank members and Dr. Garrett for their contributions. Lest people are not aware of it, The Irish Times, when publishing its final supplement in respect of the treaty, used as its source material - and acknowledged this - the report published by the sub-committee on the fiscal treaty. It used quotes from that report and acknowledged so fulsomely. In addition, the main link on its website in respect of the fiscal treaty was to the committee report, which shows that a good piece of work that is timely can penetrate its way through to the public.

I would appreciate Dr. Barrett’s perspective on the following three points. A weakness in the Oireachtas system of engagement now is that we do not discuss big-bore topics well enough. For example, there is much engagement by the sectoral committees on what I would crudely term “small-bore topics” which are hugely important, namely, sectoral matters. The big issues in terms of the future of Europe include if there will be a euro in five years' time and, if so, who will be party to it, if there will be a fiscal union and if such is in Ireland’s interest, if there is to be a banking union if Ireland should have a view on that. However, these appear to be falling between the stools. Upon reflection, this committee could perhaps capture this more effectively than it is at present. This is the type of engagement previously taken up by the Forum on Europe. While that forum had real weaknesses in the context of debate of the big topics, I am not sure those big topics are being captured well enough by Parliament. I would appreciate Dr. Barrett’s view on this.

As stated by Deputy Durkan if there is not an incentive for individual members to grasp hold of a particular topic and run with it, the ability of the Parliament to do the work will be weakened. An example would be the rapporteur system which was a function of the previous Parliament. That system no longer exists because it is not possible to adequately resource that work. In my view where a Deputy has a particular concern in regard to a particular area of European Union work, he or she should be supported in researching it and the committee system should converge behind him or her based on his or her doing the work and acting as a pointman for the Parliament in that regard. This is being done effectively by the European Parliament. I wonder if an opportunity exists for us to do this more effectively within the Oireachtas.

Much of Dr. Barrett’s testimony in terms of his being a fellow of the Oireachtas has not yet been published in a manner which would allow everyone sight of it. Perhaps Dr. Barrett would comment on this. I thank Dr. Barrett for attending and look forward to his response.

Dr. Gavin Barrett:  I thank the Vice Chairman and members for their contributions and responses to what I had to say. On Deputy Dooley’s comments in regard to European issues not getting people at constituency level excited, that is a common European-wide problem. European issues do not unfortunately win anyone anywhere votes. We need the intervention of parliamentarians because these issues are important. They make a big difference to the way things are done. However, there is a lack of an electoral reward in this regard. As such, it is difficult to know exactly what to do in that regard.

One point that can be made in this regard is that there is now a palette of choices available to parliamentarians. Members can chose to concentrate their efforts on subsidiarity review, controlling the Executive, dialogue with the Commission, reviewing the implementation of European Union law or communicating with the public. Members can do all or any of these things. There is a choice to be made, in particular by this committee, in terms of where precisely efforts would be best utilised, including in members’ electoral interests, which is a legitimate concern. It is probably impossible to avail of all of those possibilities and so it might be necessary to consider which one of them needs to be prioritised.

Deputy Dooley also mentioned Ministers coming before committees, which is happening. I was interested to hear Senator Leyden mention that Ministers, particularly in the context of this committee, tend to come back and close the circle in terms of giving feedback on what was indicated previously in committee. I would be interested to hear if this is happening in other committees or if Ministers are simply appearing before them and then not reappearing until another meeting. I do not know the position in that regard. We can probably learn from the UK system in this regard. We must be realistic in the demands we make on Ministers. In the UK there is much concentration by committees on written feedback from Ministers. If they are not happy with the written feedback in terms of what was done in respect of recommendations, Ministers are recalled to appear before them again.

Senator Terry Leyden:  For clarification, the Minister comes to the following meeting and reports what happened and sets out plans for the next meeting. As far as I am aware the Minister does not come back specifically to report on a meeting.

Dr. Gavin Barrett:  I would consider that type of closing of the circle a necessary part of an effective process. I do not know if it is possible for Ministers to appear before committees all the time. Perhaps a written process would help to some extent, if necessary.

On Deputy Dooley’s point about the risks being less in relation to introducing a scrutiny reserve system because of the critical mass of people who will not use local interests and because of the whip system, generally speaking I would agree with that point. I am in favour of the introduction of some type of system such as a scrutiny reserve system or mandate system. The Executive must take all situations into account. Obviously, a whip system will work well where one does not have a minority government. Where there is a minority government, one will have more difficulty controlling membership of committees, which must in fairness be borne in mind. On the other hand, there are risks involved in not having a scrutiny reserve system. This means that one does not have adequate democratic accountability in terms of what Ministers are doing at European Union level. There are arguments on both sides. I am certainly not advocating the Executive position in that regard. I am merely articulating the position.

On the question of an alliance with academia, I would be delighted to see this happen. I considered the Oireachtas fellowship being one way to allow that happen. In addition, internships such as those used in the United States system, would be of assistance. These are unpaid internships. Students studying European law and European integration studies would be delighted to come in here and provide research help, from which they would benefit. Perhaps that could be worked on. As it did with the fiscal treaty, the committee can provide a very useful forum for experts, much as the National Forum on Europe did. There could be an alliance with academia and other sectors of society, where there could be fruitful relationships.

Deputy Durkan commented on recentralisation, integration and related issues. It is not unexpected, with the degree of integration now taking place in Europe, that there would be some reaction against that on the part of some. On the other hand, it is probably fair to say, with the difficulties the euro is undergoing at the moment, that the need for increased integration has never been greater. I suspect the treaty we have just seen will not be the last and I suspect we will be back in referendum land within the next half a decade at this rate. In order to get the kind of finance that looks to be necessary to support economic and monetary union, there must be closer steps to fiscal union. That is being actively considered in Europe now and I suspect we will see proposals in that regard sooner rather than later. I agree that there must be a concentration of centralisation and decentralisation; there is no doubt about that.

Senator Leyden raised the implementation of the provisions of the second Lisbon treaty. That is a difficult treaty as there was not one big idea in it, like economic and monetary union in the Maastricht treaty or enlargement in the Amsterdam and Nice treaties. There is a significant range of proposals in the Lisbon treaty. I am happy that by and large it is being properly implemented. Implicitly, there is an issue of understanding of European matters among the broader population and we must focus on that.

Deputy Kyne implied the idea of whether we should be considering an ombudsman system in some respects, or at least an official, to consider whether statutory instruments are being properly implemented and whether the contents do the job in a good way. Perhaps there could be an ombudsman on implementation of European Union directives. I have a relative who is a farmer with a few cows. On one occasion that person received a letter from the Department of Agriculture, Food and the Marine implementing a European directive telling him the number of litres of nitrogen his cows were entitled to produce every year. I am not sure exactly what that was supposed to achieve. I recognise the Department implements many statutory instruments and does a very good job but perhaps that was not its best moment. That is the kind of incident that gives Europe a bad name and it should be weeded out. Perhaps some system to avoid that happening would be desirable.

Deputy Donohoe mentioned “big” issues, and that is exactly what a committee like this should be doing. During the course of my research I examined the kinds of issues that were considered by previous European Union affairs committees, and some of them were very important. At times, there was an undue concentration on issues that seemed not entirely central to the process of European Union integration. I know the conflict in the Middle East is of immense importance in terms of geopolitics and human suffering but at times the level of concentration on issues like the six pack being adopted, for example, was perhaps less than the concentration on foreign affairs. I recognise the latter might be more politically juicy but there are sufficiently juicy political issues at European level to hold the attention of a committee like this. Involvement in and focus on such issues is very important, and that is where a centralised committee like this really comes into its own when compared to sectoral committees. This committee has far more freedom to choose its own agenda than the joint committee on secondary legislation of the European committees that existed in the 1970s. That freedom comes with certain responsibility, and to my mind it involves choosing the big European issues and focusing on them.

One of the issues I examined was the kind of elements which helps produce good reports. Through the years, many things in the European arena have been described as reports but they are hardly reports at all. The factors positively affecting the quality of reports include bringing in outside expertise, such as consultants, although that has financial implications. Reports using the rapporteur system, including one involving the Vice Chairman, were of better quality than some of the other reports. Any way of continuing that system would be good, even with the decreased financial resources we currently have.

I wrote a monograph totalling approximately 120,000 words that has much information and I did not come near addressing much of it today. It has not yet been published but I understand it will be in due course. The previous Oireachtas fellow’s report has been published, and I presume my manuscript is working its way through the system.

Vice Chairman:  I am conscious that there will be a vote shortly in the Dáil.

Senator Terry Leyden:  I have a question on reversing decisions made by a Government with regard to an issue coming through the Commission. I will explain further. There is an issue regarding the banning of eel fishing, and the last Government had a green element. We did all we could to get a Minister to change his view on the ban, which did not apply in any other member state. It applied in the Republic of Ireland but not in Lough Neagh in Northern Ireland, for example. It was an outrageous decision by the Minister at the time. We would agree to a five-year derogation on the matter. If a Government wanted to reverse a decision made by a previous Minister, what approach should be taken?

Dr. Gavin Barrett:  It is difficult for me to comment on individual cases.

Senator Terry Leyden:  The witness may ponder on it. It is an issue concerning the changing of a decision made by a previous Government on the basis of a Commission recommendation. It signed up to a particular aspect of a Commission recommendation which went beyond any of the actions of the other 26 countries. We are tied to it but can the action be undone?

Dr. Gavin Barrett:  It depends on where the decision was ultimately taken. If it is an Irish implementation of a European measure, it is clearly possible to change it. For example, the precise method of implementing a nitrogen directive can be decided on at an Irish level. On the other hand, if commitments have been given at European level, it is different; if it is decided at a European level, the only way it can be undone is to persuade a sufficient number of partners at the European level that it must be undone.

Senator Terry Leyden:  We can ponder the issue.

Dr. Gavin Barrett:  That is possible.

Deputy Bernard J. Durkan:  The difficulty in reviewing previous legislation and treaties is that if one part is unwound to accommodate a party, another part would probably have to be unwound to accommodate somebody else. The raison d’être behind the creation of a treaty would then be called into question. Senator Leyden makes an interesting point as we discussed the issue in committee before. The Minister in question - who was not a colleague of the Senator - refused to come before our committee but was willing to go before the sectoral committee for other reasons. My suspicion is that there was less awareness in the sectoral committee of the full and wider implications of what was proposed than there was in the committee of which Senator Leyden was a member. There is a lesson to be learned from that.

There is an issue with the lack of leadership on the European issue and its agenda. Individual forays suit the particular agenda of individual member states at particular times. We cannot proceed that way. The witness correctly said there will be some degree of fiscal union. Yes, we have to be moving in the same direction at the same time. We cannot have one country going in a direction that is at variance with all others on European policy. Otherwise, the entire sense of purpose of the European Union cannot be satisfied.

That debate must take place, but it is not taking place at present. There is a huge opportunity for the current Presidency and the forthcoming Irish Presidency in that regard. We are uniquely placed now to show a leadership in Europe that has been sadly lacking for the past number of years. The only time we test the strength of our institutions is at a time of stress. Of course, they work quite well otherwise but a time of political and economic stress is the time to test them. We must do that.

Dr. Gavin Barrett:  I agree with that. I did not address Deputy Kyne’s point about whether it is a good idea to have shifted the emphasis to sectoral committees. I am in favour of the involvement of sectoral committees simply because the breadth of application and competence of the European Union at this stage is so great that it is impossible for a single centralised committee to have enough expertise to cover every particular issue. One must introduce sectoral committees; there is no doubt that they must be involved. Every country in Europe is slowly but surely introducing sectoral committees, but there are different ways of doing it. Some countries do it by bringing in members of sectoral committees to be members of the European committee at times. There are different ways of doing it but there is no doubt that there must be a combination of the centralised and the sectoral approach. Either a completely sectoral approach or a completely centralised approach will not work.

A final point must be made in defence of doing things at European level. There are many advantages to being involved in the European Union. One of them is overcoming regional or national sectoral interests which are too entrenched and too powerful to overcome at national level. One might disagree with the number of raised bogs that are protected in Ireland but there is no doubt we should be protecting raised bogs in this country somehow and to some extent. Similarly, Europe has a great deal of value in taking on interest groups such as banks, lawyers and pharmacists. That must be borne in mind as well.

Vice Chairman:  On that note, Dr. Barrett, thank you for your attendance and contribution this morning. It gives us much to ponder and is a helpful check as to where we stand at present. We will go into private session for the rest of the meeting.

The joint committee went into private session at 12.43 p.m. and adjourned at 12.50 p.m. until 11.30 a.m. on Thursday, 14 June 2012.