European Union (Scrutiny) Bill, 2001: Report and Final Stages.

Wednesday, 9 October 2002

Dáil Eireann Debate
Vol. 554 No. 5

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Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  I move amendment No. 1:

In page 3, to delete lines 15 to 32, and in page 4, to delete lines 1 to 10 and substitute the following:

“1.–In this Act, ‘legal instrument' includes any directive, regulation, framework decision, decision or convention that is made or drawn up by the Council of Ministers, regardless as to whether–

(a) the proposal for that instrument is made by the European Commission or, in relation to co-operation in the field of justice and home affairs or on common foreign and security policy, is made on the initiative of a Member State, or

(b) the making of that instrument is subject to co-decision by the European Parliament or otherwise.”.

Sinn Féin appreciated the positive intent of the provisions in the original Bill, tabled by Deputy Quinn, particularly regarding the increased Oireachtas scrutiny of EU legislation and the actions of Ministers within EU bodies. We wel[574] comed the attempt to clarify and codify that Irish Defence Forces may only participate in overseas operations with UN forces and only after approval by the Oireachtas. Such clarification is necessary, even if we do not agree with how these portions of the original Bill were drafted. We opposed in the strongest possible terms both the Government amendments and the Labour Party's subsequent capitulation to the gutting of its Bill on Committee Stage last week. Given that we had our concerns about portions of the original Bill, as expressed on Second Stage, this puts us in the unenviable position of having to argue for large portions of the original Labour Party Bill as it has forfeited that right.

We, therefore, have tabled Report Stage amendments that restore large parts of the Bill that were positive and, combined with additional amendments, deal with the serious concerns raised on Committee Stage about inadequate limitations on ministerial discretion, which is a major contributor to the democratic deficit identified in relation to the conduct of EU business and our concern about the introduction of clauses that would in effect legislate Ireland's participation in the Rapid Reaction Force and Partnership for Peace, which is a further threat to our neutrality. We support full scrutiny by the Oireachtas of all EU legislation to the extent that sections 1 to 5 of the original Bill attempted to include all EU legal instruments as objects for scrutiny. These provisions needed to be strengthened which is what we are trying to achieve in this amendment. We oppose the amendments made to section 1 on Committee Stage.

Given our concerns for the inclusive and comprehensive definition of legal instruments for the purpose of this legislation, the Bill's definition of “measure” is unduly restrictive and unacceptable. In specifically referring to Articles 14 and 15 but not to 30, 31, 32 and 33, the Bill both excludes justice and home affairs, and common foreign and security policy. These areas must come under full scrutiny. The people have made their concern about this matter very clear. The attempt to shield these areas from enhanced scrutiny is reinforced in the deletion of the provisions in the original section 5 of the Labour Party's Bill which made specific reference to applying scrutiny provisions to common foreign and security policy. This is further reinforced by section 3 which enhances ministerial discretion by exempting measures from scrutiny which are, in the Minister's opinion, confidential. We want to ensure that no opportunity for scrutiny is forfeited under this legislation.

Minister of State at the Department of Health and Children (Mr. Kitt): Information on Tom Kitt  Zoom on Tom Kitt  I welcome the opportunity on the Government's behalf to deal with the Report and Final Stages of this important legislation. The Government attaches great importance to addressing public concerns relating to democratic accountability on EU issues and looks forward to working with the Oireachtas in [575] pursuit of this key objective. The new scrutiny arrangements which have been in place since 1 July will, if effectively implemented, give Ireland one of the most advanced systems of parliamentary oversight in the EU. The Government's aim in progressing this legislation is to place new scrutiny arrangements on a formal legislative basis. I pay tribute to the Labour Party on its initiative in tabling this Bill.

There are a number of other provisions in the current administrative arrangements for enhanced Oireachtas scrutiny, notably briefing in advance by Ministers of Council and European Council meetings, which will, of course, continue but which it is not proposed to include because such arrangements are not appropriate to legislation. The Government also intends to provide information notes on Commission Green and White Papers to the Oireachtas. This is not specifically in the Bill as its focus is essentially on legislative instruments.

A number of amendments have been put down which are not appropriate to this Bill, in particular those related to the Defence Acts which are the responsibility of the Minister for Defence and are separate and distinct from the issue of Oireachtas scrutiny of EU affairs. Issues related to defence and Ireland's policy of military neutrality are fully covered by the Seville Declarations and the proposed constitutional amendments, which in effect preclude Ireland from entering a common EU defence.

As someone who has represented the Government on many councils over the years, I welcome this initiative as it is necessary to have such transparency. The Sinn Féin amendment to the Government amendment accepted on Committee Stage is a copy of section 1 of the original Bill. As stated then by the Minister, Deputy Cowen, the Government amendment sets out clearly the measures to be covered by the legislation and these include regulations in the first pillar, joint actions and common positions in the second, and all measures requiring the prior approval of the Houses of the Oireachtas under Article 29.4.6º of the Constitution which embraces third pillar framework decisions and conventions. The terms “European Communities” and “Minister” are also defined in the section while the text in section 1(2) is defined to provide legal clarity to references to a section, subsection or paragraph and an enactment. Section 1 is the text agreed on Committee Stage and clearly sets out the measures to be covered by the legislation and so I do not propose to accept the Deputy's amendment.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  In the first instance, the Labour Party is committed to the committee process in legislation, and it was our intention to take the work of the committee seriously. Our spokesperson participated on Committee Stage and listened to the arguments put forward. Some of the changes agreed to by the Labour Party were on [576] the basis that we wanted to have legislation that could be in place and that possessed legal certainty. We acceded to such arguments put forward such as, for example, that other legislation might be more appropriate to some of what we sought in the original Bill, as initiated. For example, it is appropriate to amend aspects of the Defence Act, 1963.

The Bill, as introduced, was part of a set of measures introduced by the Labour Party. The Labour Party produced its concept of the forum which allowed Members to express their concerns and different views, not only about Europe's past and present, but also about its future shape. We are proud we introduced the concept of the forum and participated in it. We argued strongly in favour of a constitutional amendment on neutrality which was agreed with the Government. Having agreed with the Government on a constitutional amendment which will be part of what will be put to the people on 19 October, it behoves us to operate in good faith in terms of its consequences. The amendment on neutrality, if adopted, clearly makes redundant some of that which we had originally suggested, an issue which I will come to in later amendments.

As regards the European Union (Scrutiny) Bill, we were anxious that the deficit which had emerged through the discussion on the forum be met. We were also anxious to have legislation that could be agreed with the Government. That is the background to the Labour Party's position on these amendments.

With regard to amendment No. 1, as I am substituting for Deputy Wall, who cannot be present for personal and family reasons, I can be frank and say that the achievement on the three dimensions I have mentioned – the forum, the specific reference to neutrality in a constitutional reference and the Bill before the House – was the outcome of a considerable amount of negotiation on the part of the Labour Party and those with whom we were dealing. That having been the case, we have an obligation to respect the agreements reached and to listen to the will of the committee which dealt with this issue on Committee Stage.

When I read the amendment and look at the definition of “legal instrument”, it would be my construction that what is being sought is incorporated in the text before the House, and that the amendment is, therefore, not necessary. A further point which the mover of the amendment may not find attractive is that in the event of a “Yes” vote on 19 October, I imagine that a European Communities Bill will have to come before the House. With regard to the other parts of the amendment, there will be an opportunity to address many of these issues should they remain outstanding.

Mr. J. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  The Labour Party has done the State a considerable service in circulating its original Bill, the European Union Bill, so shortly after the original Nice referendum on 7 June [577] 2001. It focused on an issue which was of considerable relevance to the people in deciding not to adopt Nice on that occasion. That was the very clear, absolutely disgraceful, democratic deficit that existed at the time. From that point of view the Bill as remodelled from Committee Stage is something we should heartily commend to the people. It is said that every cloud has a silver lining. One of the good by-products of the failure of the Government to get the Nice referendum through is that we now have an approach which involves addressing the democratic deficit. The way to do this is through the Oireachtas and its committees. That is the reason I am delighted to be involved in the European Affairs committee at this time in a new type of format. In the past, the relevance of being involved in such a committee was somewhat problematic. We now have a situation where Ministers come before the committee before going to the Council of Ministers. It may be a nuisance for them. I attended meetings of the Council of Ministers for about five years and I would probably have regarded it as a nuisance had I to come before the committee. If that is what needs to be done to connect Europe with the people, it has to be done. That is why this is such a good Bill.

Today the Minister for Justice, Equality and Law Reform, Deputy McDowell, came before the European Affairs committee. He is attending a meeting after the weekend of Justice and Home Affairs Ministers. We went through every item on the agenda. That meant there was an opportunity for an input from Parliament. We have formalised in a statutory shape a requirement for proper scrutiny of proposals from Europe. I heartily endorse it and see it as a beginning.

Having received a letter from you, a Leas-Cheann Comhairle, on an amendment I have tabled, I hope this is the beginning of a process. It should not be the end of a process. There will be further referenda to confront. Unless we can show we are up to date and prepared to continue to mediate what is happening in Europe to our people, we will lose out. I am confident that, having seen the new approach regarding Europe, the people will vote sensibly on 19 October and adopt the Nice treaty as being in the national interest. There is no doubt about that.

From the point of view of the democratic deficit, the scrutiny of what is coming from Europe and what is involved in the European stage, let us consider this as the beginning of the process. I will not press the particular view I hold at present, but I will do so in the future, namely, that all appointments to Europe should be vetted by the European Affairs committee. All appointments, proposals to appoint commissioners, judges, auditors and so on should be vetted by the European Affairs committee. I would like any proposed appointee to come before the European Affairs committee and I see that as the next stage.

I understand for procedural and other reasons, not least the Opposition or the Government, that, [578] as of now, there might be a difficulty in having that incorporated in the Bill. My plea to the House is to have a real understanding of where we are at. We are at the beginning of the road so far as the democratic deficit is concerned. Let us see it as the beginning of a process whereby the Houses of the Oireachtas and, in particular, the European Affairs committee will be increasingly involved in discussing, in advance as far as possible, the proposed decisions that will emerge from Europe in the future. That is the reason I originally supported the Labour Party proposal. I accept that the Bill as remodelled and recast is probably as much as any Government could accept at this stage. All I ask is that the Minister agrees that the Bill, which will be put through the House tonight, is the beginning of the process rather than the final legislation to be put in place from the point of view of the democratic deficit and scrutiny of European proposals.

Mr. Mulcahy: Information on Michael Mulcahy  Zoom on Michael Mulcahy  I too oppose the amendment proposed by Deputy Ó Snodaigh for the reasons set out by the Minister of State. Recently, the European Affairs committee, which was attended by the Minister for Foreign Affairs, Deputy Cowen, had an excellent debate on this Bill. He dealt at length with virtually every section of the Bill. I also wish to join the Minister in congratulating the Labour Party for having initiated this Bill in the last Dáil and I commend the Government for adopting it. It is not the first time a Government has adopted an Opposition Bill and it is a good practice where there is merit in the Bill proposed, as there clearly is in this case.

I have already received my first scrutiny file for 9 o'clock tomorrow morning. I have a baleful of scrutiny documents – proposed EU laws, directives and decisions that the scrutiny committee—

Mr. J. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  May the Deputy have a good night's reading.

Mr. Mulcahy: Information on Michael Mulcahy  Zoom on Michael Mulcahy  The scrutiny committee is going to examine all proposed European legislation. It will refer some of it to other committees of the Oireachtas. In certain other cases it will decide that no further action is required, and it will make appropriate decisions along the line. It is great that we are now arriving at the situation where that democratic deficit is finally being addressed.

I make no apology for saying that there is a need for debate on European issues. There is a need for debate on the future of Europe. I believe the Forum on Europe is only the beginning of that debate in Ireland, and I also believe that the Convention on the Future of Europe, under the chairmanship of Valéry Giscard d'Estaing, is only the beginning of that debate in Europe. Nobody is ever going to stifle debate on the future of Europe. When the debate ends, the whole project will be at an end. That is not to say there are not problems, and nobody should ever deny there are [579] problems or that there are issues of concern to people.

The first issue I highlighted at the Committee on European Affairs was that of prices to the consumer and the lack of competition. I am referring to the price of bread, butter, car insurance, motor cars, spaghetti, wine – the bread and butter issues that are of primary concern to the people of Europe.

In so far as I am a member of the scrutiny committee, I will reject any bit of mumbo jumbo or rubbishy proposals that come before me because I believe it is high time the European Union got a dose of common sense, brought reality to its proceedings and made the whole European project more important and more relevant to the ordinary people of Europe. That has nothing to do with Nice, it is not controversial at all. People support Europe in general but they want a Europe that is listening and that is relevant. It is important for the scrutiny committee to keep its focus on the issues that are relevant to people – the quality of the environment, the price of goods, standards in health and other services and equality of rights. These issues are very important.

If I see on the scrutiny committee that the EU is debating at length the trajectory of a banana or the size of proposed new grapefruits I will be very upset indeed. That is where the European Union is capable of running off the rails and not addressing the central issues.

I agree with the Minister of State, Deputy Kitt, that the European Union (Scrutiny) Bill, 2001, is an excellent Bill, and as a member of the committee I wish to thank the Government for providing the resources necessary. This can be quite a technical issue, a matter that has been raised at the Committee on European Affairs. Some of these documents are very technical and intricate and we may need resources. I do not mind putting it on the record of the House that the scrutiny committee may need more resources.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  That is a matter for another day.

Mr. Mulcahy: Information on Michael Mulcahy  Zoom on Michael Mulcahy  It is a matter for another day, and maybe I have gone on a little bit at length. However, it is necessary to put it on the record that the majority feeling at the recent meeting of the Committee on European Affairs was that the Bill, as proposed, is an excellent Bill and will readily address the democratic deficit we have all identified.

Mr. Boyle: Information on Dan Boyle  Zoom on Dan Boyle  My party is not a member of the Committee on European Affairs and it was our intention to move amendments on Report Stage. Fortunately, or unfortunately, the Government chose to move amendments that we would have been prepared to move ourselves in the defence area, maybe for different motivations but for the same good effect, we would argue.

[580]The original Bill tried to do two things. First, it attempted to address to some extent the democratic deficit which exists in the European Union, as it exists in political systems throughout the western world. Second, it attempted – incorrectly in our opinion – to address defence and security issues in a legislative way. We felt this was totally the wrong road to go down. The Government has made its amendments, it has been accepted by the committee and it is not an area we need to debate.

As regards the amendment moved by Deputy Ó Snodaigh, we would be in agreement with it and the sentiment behind it. For the House to be self-congratulatory and assume that this Bill in itself addresses the democratic deficit would be a big mistake because parliamentary scrutiny is very much down the line in terms of addressing the question of the democratic deficit.

The democratic deficit exists in political systems because of people's lack of identification and subsequent lack of engagement with democratic structures. Where the institution has no real democratic structures at all – which is the case with the European Union as it is currently constituted – this is a real problem. This is entrenched by the type of attitudes seen in our referendum campaign. When people are asked to engage in European issues, they are being asked to do so by a mixture of fear and pity rather than dealing with the constructive aspects of the European Union, what it can be and what it can be developed into.

The fact that we lack this type of maturity in our political debate makes it all the poorer, and it is the reason we are failing to interact in a proper way with the potential of the European Union. The democratic deficit is expressing itself in a lot of ways, and people who feel the public is suddenly going to engage, or is starting to engage, in a positive way would be wise to see much of the public reaction as simply a case of telling us in the political establishment – in this House and in the European Union – what we want to hear. That is not real engagement. I get a sense that people are either indifferent or will say anything just to get the political establishment out of their hair. That is to our own detriment as people involved in the political process and it is ultimately to the detriment of democracy itself within this nation and the European Union.

I would have hoped that with this Bill – and I am saddened not to see it – we would see a whole raft of proposed legislation as to how the real democratic deficit can be addressed. There is a need for structures where people can seek information and become properly informed and more involved in decision-making processes. Then perhaps we can talk about the reality of a European Union that does not have a democratic deficit. This is such a tiny corner of what needs to be covered that we are really deluding people that the question of the democratic deficit is being tackled at all.

[581]Until we can get that sense of a public that identifies with us in our role within a European Union then this Bill is a poor substitute. I hope that amendments like this will raise further discussion and further thought-provoking ideas, and, ultimately, that we would come up with the type of legislative programme that will meet the real need that exists in Irish political life and in the political life of the European Union.

Minister of State at the Department of Foreign Affairs (Mr. Kitt): Information on Tom Kitt  Zoom on Tom Kitt  I wish to thank the Deputies for their contributions and, in particular, Deputy Ó Snodaigh for putting down his particular amendment and his own contribution here and at the Forum on Europe, an organisation of which he is a very active member.

Deputy Higgins is correct. Three things have happened, and they were echoed by Deputy O'Keeffe. We have had the establishment of the Forum on Europe, the neutrality issue has been dealt with and we have now introduced this scrutiny legislation. They can be regarded as three historic developments, but as someone who has been active in European politics for some time in various ministries, I am at one with those who said that we need much more transparency and scrutiny. Deputy O'Keeffe was right when he said that this is only a start, and we all have to remember that in the months ahead.

Deputy Higgins was right when he said there will be a requirement for further legislation following the passing of the Nice referendum. A short European Communities amending Bill will follow in the event of any treaty being passed, but we now have the makings of an advanced system of parliamentary oversight.

There is no question that this is a wake-up call for Europe as well as this country because, in my discussions with many Ministers over the past number of years, they have all said that there is an information deficit, to which Deputy Mulcahy referred, and confusion among citizens. We want to connect with the citizens of Europe in an honest, open way. In that regard, while canvassing last night it was refreshing for me to listen to a young person aged about 18 or 19 discuss with me on the doorstep the changes in the qualified majority voting and enhanced co-operation. I assure the House there are not many people throughout Europe, and I have heard this directly from Ministers, who have that kind of knowledge. Questions and concerns remain but many people are very well informed thanks to the efforts of everybody involved. My main hope is that people, regardless of their view, will vote on 19 October. I hope Deputy Ó Snodaigh will accept my assurance that we have tried to encompass his concerns in our amendment.

Question, “That the words proposed to be deleted stand”, put and declared carried.

[582]Amendment declared lost.

Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  Molaim leasú Uimh 2:

In page 4, to delete lines 11 to 39 and substitute the following:

“2.–(1) No Minister may, at a meeting of the Council of Ministers, commit the Minister, any other Minister, the Government or the State to support for any proposal for a legal instrument unless the provisions of section 3 are first complied with.

(2) In subsection (1)

‘Council of Ministers' includes any meeting at which business proposed to be transacted by the Council of Ministers is prepared or discussed;

‘Minister' includes a Minister of the Government and a Minister of State and also includes any person authorised to act on behalf of, or to represent, a Minister of the Government or a Minister of State.”.

Cuidím lena bhfuil ráite roimhe faoin gconradh.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  Nach bhfuilimid ag tógaint leasuithe Uimh. 2, 3, 4, 5, 6, agus 7 le chéile?

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  Amendments Nos. 3 and 4 are alternatives, amendment No. 5 is related and amendments Nos. 6 and 7 are alternatives to amendment No. 5. We are taking amendments Nos. 2 to 7, inclusive, together, by agreement.

Aengus Ó Snodaigh: Information on Aengus O Snodaigh  Zoom on Aengus O Snodaigh  Molaim leasuithe Uimh. 2, 5 agus 7. Tá mise ar an rogh-choiste a bhaineann le cúrsaí Eorpacha, chomh maith le Teachtaí Mulcahy, Jim O'Keeffe agus Kirk. Tá an-obair á dhéanamh ag an gcoiste agus beidh a thuilleadh oibre á dhéanamh amach anseo. Caithfimid tacaíocht a thabhairt don bhfóram ar an Eoraip agus tá súil agam go leanfaidh sé ar siúl nuair atá conradh Nice curtha chun codladh againn.

D'éirigh leis an bhFóram dul timpeall na tíre agus ceist na hEorpa a ardú. Ba cheart go ndéantar dian-scrúdú ar gach uile rud a thagann os comhair an Tí seo agus os comhair an rogh-choiste ar chúrsaí na hEorpa ach go háirithe. Is trua nach bhfuil an Bille atá os ár gcomhair chomh foirfe leis an mBille a chuir Páirtí an Lucht Oibre os comhair an Tí. Is trua nach bhfuil na leasaithe atá á moladh ag páirtí s'agamsa inghlactha ag an Rialtas. Is botún é sin ag an Rialtas.

It is unfortunate that my amendments do not appear to be acceptable to the Government because their intention is to increase democracy in Europe and ensure full scrutiny of every issue dealt with by this House. The original section 2 of the Bill was deleted and our amendment No. 2 proposes to restore it unaltered. For legislative instruments without prior consultation with the Oireachtas, the retention of this section, as originally drafted, is crucial in the interests of transparency and accountability. It is essential to [583] rectify our domestic democratic deficit with respect to EU affairs.

The proposals in the Bill as it now stands are totally inadequate and render the exercise tokenistic, at best. I am not convinced that there is significant improvement on the provisions and practices that currently exist. We particularly object to the idea that the Minister should only have regard to recommendations made to him or her, under section 2(2), and the provision that the Minister can decide not to consult, under sections 2(3) and 2(4). We object also to the unwarranted increase in ministerial discretion provided for in section 3 which allows a Minister to forego reporting requirements if it is in his or her opinion that the proposed measure is confidential. What kind of legitimate legislative instrument or measure is confidential and above public scrutiny? That is not the type of accountability the Irish public seeks.

The Bill also prevents the application of judicial scrutiny to Common Foreign and Security Policy. That is wrong. The Bill before the House scuppers the original intention of the legislation as tabled and makes a mockery of the spirit and intent of the original Bill. It does not amount to scrutiny, transparency or accountability. Indeed, it actively undermines these objectives. The limited provisions for reporting are not good enough. They do not satisfy the test for transparency and accountability intended in the original Bill.

We raised this issue on Committee Stage and while I could not be in attendance to move my amendments, my colleague did a good job in trying to explain our position on this matter. The explanation offered by the Minister for Foreign Affairs, Deputy Cowen, for gutting the original Bill was that it was unconstitutional. Subsequently, my office pressed the Minister to specify the area that was unconstitutional and the reply was that the original section 2 prevented Ministers from agreeing to any proposal for a legal instrument prior to consultation with the Oireachtas. Section 3(2) in the original Bill preventing the Minister from accepting a proposal if a resolution rejecting it was passed by the Oireachtas was unconstitutional under Article 29 as it would “interfere with the Executive function of the Government” and thus with the separation of powers.

There are several problems with this. Firstly, I must protest that this legal opinion should have been made available to the committee for consideration; failing this, the committee should have solicited an independent legal opinion on the constitutionality of the draft under consideration. It was not acceptable that we should have merely taken the Minister's word for it. In the Constitution, Article 29.4.2º specifically allows the conditions to be determined by law. Nothing in the Constitution prevents us from keeping Ministers to account. It is not, therefore, a clear matter of unconstitutionality of the original Bill as drafted. [584] I hardly think the Labour Party would have drafted a Bill that was unconstitutional – I would be shocked if it did.

Mr. J. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  We are dealing with six amendments, four of them in my name. Amendment No. 3 is an amendment to section 2, which deals with the scrutiny of measures by the Houses of the Oireachtas. I am generally in favour of the section as it is currently cast, which provides that as soon as practicable after a measure is proposed by the Commission or initiated by a member state, the Minister must cause a text to be laid before each House together with a statement from the Minister outlining the content, purpose and likely implications for Ireland of the proposed measure. That makes absolute sense. What I want to change in subsection (1) is the words “including such information as he or she considers appropriate”. I had thought to improve the Bill by suggesting that instead of giving statutory discretion to the Minister to include such information as he or she considers appropriate, the Minister should instead provide such other information as is necessary to facilitate effective scrutiny of the proposed measure by Members of the Houses. I was trying to shift the emphasis to greater objectivity so that, rather than the Ministers deciding what is appropriate, the information must pass objective criteria.

My next amendment is along similar lines. The section goes on to allow the Minister to have regard to any recommendations made to him by the Houses or a committee of the House, and then provides that those two subsections will not apply if, in the opinion of the Minister, there is insufficient time for the carrying out of the procedures laid out in subsections (1) and (2). The performance of the functions of the Houses of the Oireachtas are also mentioned. That is a statutory escape hatch. I can envisage circumstances in which emergency proposals might prevent the Minister from going through the procedures outlined in the section, but I felt that in that situation there would be a particular onus on the Minister to take the further step which I have proposed in amendment No. 4. That provides that where the Minister is unable to comply with subsections (1) and (2), he shall make a report to the Houses or a committee of the Houses setting out his reasons for his opinion under that subsection. This amendment is designed to put a little more pressure on the Executive in situations in which a Minister – a Fianna Fáil Minister in the short term, but hopefully not always – could not comply with the terms of the section.

The other amendments, briefly, relate to section 3. It is clear that section 3 exempts the Minister from the requirement to lay all this information before the House where, in the opinion of the Minister, the proposed measure is confidential. Again, I can envisage such situations in which it would not be in the national interest to have a proposal made public until discussion of it had been completed and some decisions [585] arrived at. If, however, we do give that discretion to the Minister, there should be a statutory requirement that the Minister report to the Houses why he considers such a proposal to be confidential. That report may be made subsequently. The Bill at present merely provides that when subsections (1) and (2) of section 2 do not apply to a proposed measure the Minister may make a report to the Houses. It would be appropriate, if the Minister feels that he needs to be exempted from the provisions of the Act, that he should be statutorily required to make a report to the Houses. My proposal provides that instead of the Minister's being entitled to make a report to the Houses, he must make a report, changing the provision to an imperative.

Amendment No. 7 is along the same lines. As the Bill is currently framed, the Minister is allowed to make a report to the Houses “as he or she deems appropriate in the circumstances.” That allows too much discretion to the Minister. The national interest must come first, so the Minister must be released from the terms of the Act where there is an emergency situation or a confidential proposal – I can envisage such circumstances because I have dealt with them myself. There should then, however, be a statutory requirement that the Minister report to the House why he considered that the situation was an emergency or confidential.

I am trying, in putting forward these proposals, to be constructive while shifting the balance of power a little towards the Legislature rather than the Executive. I do not have much confidence that the Government is in the mood to accept them at this stage, but I did say at the beginning that from the point of view both of future developments in this area and of the proposal, I feel very strongly about vetting appointments and proposed appointees coming before the committee and other such extensions of the powers of the Oireachtas and the Committee on European Affairs, and I hope that I am laying the foundations for the future in sections 2 and 3 and that these are aspects in the process that will be considered in the future. It is in that spirit that I propose these amendments.

Mr. Kirk: Information on Seamus Kirk  Zoom on Seamus Kirk  I am conscious that we are on Report Stage and most Members had an opportunity of making a contribution on Committee Stage. Perhaps we did not have the focus of a plenary session, but at least we had it in committee. There was a very good exchange and the Minister for Foreign Affairs was never reluctant to engage with other Members. As Deputy O'Keeffe will vouch, many of the points he is making were responded to more than adequately on Committee Stage.

On the point made by Deputy Ó Snodaigh regarding the constitutional consideration, my recollection is that the Minister outlined, first, the responsibility of the Executive and, second, the responsibility of Parliament.

[586]The Committee on European Affairs is a very active committee of the Oireachtas. It will have a very important and busy role when we get into the business of scrutinising EU directives and regulations. Perhaps it would be no harm to focus on the capacity of the committee as a structure to handle the provisions envisaged in the legislation. It is intended that, where appropriate, there will be a diversion of directives and regulations for consideration to other committees of the Houses. It goes without saying that there will be a great need for specialist backup for committees if the intended objectives of the legislation are to be met. At this point we should pay tribute to the Labour Party for its input into the proposals contained in the legislation.

At a time when the phrase “democratic deficit” is mentioned on a regular basis, the legislation goes a long way to meet the perceived shortcomings in this area. This will put a considerable workload and pressure on committees of the Houses. It will test their resolve to see these matters through to their inevitable conclusion. A number of Members currently in the Chamber were in attendance at today's meeting when we had an early experience of how matters will work when we get down to the business of scrutinising issues. The Minister for Justice, Equality and Law Reform, Deputy McDowell, attended and a whole range of issues due to be considered at a Council meeting on 13 and 14 October were discussed. We spent some time on a whole range of issues and it is fair to say that the Minister responded very adequately. Members of the committee showed their ability to anticipate what was contained in the proposals which will come before the Council meeting in three or four days.

This is just the first experience of what will be a significant workload in the months and years ahead. A great responsibility will rest on the membership of these committees. It may be that the arrangements for committee sittings in the Houses generally may have to be looked at. The question of committee meetings taking place during a plenary session of the Dáil when people must keep one eye on the monitor and the other on the debate in the particular committee room may not be the most satisfactory way to deal with what we are talking about in this debate.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  I will be brief because I appreciate Members wish to discuss other amendments.

Ba mhaith liom a rá ar dtús go gcuireann sé áthas orm an Teachta Ó Snodaigh a chloisteáil ag labhairt i nGaeilge i gcónaí. Ós rud é gur thagair sé don mBunreacht féin, caithfidh mé an pointe seo a dhéanamh.

Deputy Ó Snodaigh is absolutely correct to suggest that Article 29.4.2º clearly suggests there is no impediment whatsoever to holding a Minister to account. Unfortunately, constitutional theorists would suggest that certainty is the value above all others that constitutions must have. Draftspersons and constitutions would follow cer[587] tainty by suggesting that brevity in language is the best instrument for achieving certainty. However, as it is passed into legislation and as I respond to amendments Nos. 2 to 7, one must ask in regard to the amendment, while it might have considerable merit, whether it confers legal clarity in interpretation and whether it will deliver legal clarity. I believe that is the case in regard to amendments Nos. 3 and 4 and I agree with Deputy O'Keeffe in what he is seeking to achieve.

I urge the Minister in his response to this group of amendments to give an undertaking that he will return to this issue in future legislation, for example, in accommodating the European Communities Bill, depending on the referendum results. For example, Deputy O'Keeffe's amendment No. 4 addresses the issue of where the balance of discretion should lie. He is anxious not to impede the exercise of discretion solely in terms of the Minister. Equally, the European Union has been considerably disabled by what one might call the technicist fallacy, that is, the issues of discretion are, in fact, technical ones. It is not acceptable that one would remove from Parliament the exercise of discretion. This is a matter to which we must return. Deputies are correct to say the new scrutiny committee will require resources. One way of completely ruining the scrutiny committee is to dump on it a whole series of documents without comment or the resources to go through them. Scrutiny requires resources.

Amendment No. 6 refers to “may” and “shall”. “Shall” presumes a certainty and precise location of the exercise of discretion. I have sympathy with Deputy O'Keeffe on this issue which I believe should be resolved. I do not think it could be resolved easily in this legislation because it would assume that where the discretion lay is, in fact, obvious. There is a further problem. One will have to change completely the report to the Communities. Section 2(5) gives a clear commitment that the report of developments to the Communities may be completely different from what it has been to date. This change, which is an improvement on our Bill, requires a report twice a year. When we are deciding where the discretionary factor appropriately lies we should do so in relation to forthcoming legislation. However, I do not think it can be achieved in this legislation.

Mr. T. Kitt: Information on Tom Kitt  Zoom on Tom Kitt  I will try to deal with some of the main points on the constitutional issue. On behalf of the Government I will reflect on all the points made. I accept that this is just the beginning, as Deputy O'Keeffe said.

The Constitution allocates certain functions to the Oireachtas and certain functions to the Government as the Executive. We cannot change these functions by legislation. However, it is important to establish an effective dialogue between the Government and the Oireachtas on [588] the broad range of EU business. The Bill before us provides a legislative basis for that dialogue.

Deputy O'Keeffe's amendments Nos. 6 and 7 appear to oblige a Minister to make a report, even in exceptional circumstances where, because of the confidentiality of the issue, he or she would not be in a position to provide the information. As the debate has proceeded the Deputy has acknowledged the Government's position in this regard. To add to what the Deputy said, the provision is necessary in view of the wide remit of the Act. If we take on the confidentiality provision there may be issues in relation to terrorist organisations. An example of this would be in the Common Foreign and Security Policy which includes a proposal to impose sanctions such as those in force against the regime of the former Yugoslav President Milosevic. In such cases the proposal normally includes details of proposed targets for sanctions. The publication of this information in advance could jeopardise the successful implementation of the sanctions and information on any such measure would be brought to the attention of the Oireachtas as soon as possible.

I accept the spirit of the debate. On behalf of the Minister for Foreign Affairs, Deputy Cowen, who dealt adequately with these issues during the previous Stage, I wish to thank Deputies for their contributions. I am sorry we did not have more time to discuss these issues. I thank those who contributed to all Stages of the Bill and I hope we can proceed from here.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  As it is now 9.30 p.m. I am required to put the following question in accordance with an order of the Dáil of this day: “That Fourth Stage is hereby completed and the Bill is hereby passed”.

Question put and agreed to.

An Ceann Comhairle: Information on Séamus Pattison  Zoom on Séamus Pattison  The Bill will now be sent to the Seanad.


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