Ceisteanna—Questions. Oral Answers. - Protocol to Maastricht Treaty.

Alan Shatter


3 Mr. Shatter asked the Taoiseach if he will outline, (a) the persons consulted with regard to the drafting of this State's Protocol in respect of Article 40.3.3º of the Constitution as contained in the Maastricht Treaty.

Mervyn Taylor


4 Mr. Taylor asked the Taoiseach if he will make a statement outlining the progress which has been made in relation to amending the Protocol to the Maastricht Treaty.

Dick Spring


5 Mr. Spring asked the Taoiseach if he will outline the up-to-date position in regard to amending the Maastricht Protocol; and if he will make a statement on the matter.

Bernard J. Durkan


6 Mr. Durkan asked the Taoiseach if he has satisfied himself that current proposals in respect of the addendum to the Maastricht Protocol comply with, (a) the Maastricht agreement, (b) the Irish Constitution and (c) the two most recent Supreme Court decisions in respect of, (1) the right to travel and (2) referrals and the right to information; and if he will make a statement on the matter.

Bernard J. Durkan


56 Mr. Durkan asked the Taoiseach if he has consulted all, or any, of the EC Leaders in regard to Ireland's addendum to the Maastricht Protocol; and if he will make a statement on the matter.

I propose to take Questions Nos. 3, 4, 5, 6 and 56 together.

I have always tried to make it clear that any change in Protocol 17 to the Treaty, as it was signed on behalf of all member states of the Community in Maastricht on 7 February last, could only be made with the agreement of our eleven partners. That is why, since the question first arose, we have been making strenuous and consistent efforts, at all levels, to get the agreement of our partners to an amendment of the Protocol.

The whole issue was considered at the General Affairs Council in Luxembourg yesterday. There, the Council did not agree to amend the Protocol. They concluded that they could not reopen the Treaty or its Protocol since to do so could leave the way open to pressures in the other states for other amendments. I should emphasise that all were sympathetic to our case and indicated that they would be as helpful as they could to Ireland in resolving our difficulty, in ways, including perhaps a formal Declaration or Interpretative Statement that did not reopen the Treaty.

The Government intend to consider the options open to them in the light of this situation.

Will the Taoiseach indicate, in the context of Question No. 3, the persons who were consulted with regard to the original drafting of the Protocol and will he confirm that if the Maastricht Treaty is put to the people with the Protocol still in place it will in effect copperfasten the ban on travel and the difficulties in the information area that we currently have? Would the Taoiseach agree that if the Protocol was removed, rather than amended, it would have the same impact in the area of travel and information as the amended Protocol proposed by the Government? Have the Taoiseach or the Government suggested to the other member states, if they cannot agree to an amendment of the Protocol, that they might agree to a deletion of it on the basis that it would not add anything new to the Maastricht process, but would resolve the difficulties of travel and information in the European context and allow us address them at home by way of a referendum?

All the appropriate persons were consulted in relation to the drafting of the Protocol in the first instance. With regard to amending or withdrawing the Protocol, the case is the same in so far as we have been informed that both represent a reopening of the whole Treaty. Consequently it is not open to us to do either. That is the position as it stands. The 11 member states are sympathetic to our position but the reopening of the Treaty would involve pressures in various member states and one has to be extremely careful in relation to Maastricht. It is most important for the future of this country. While the other items are also important, we must look to our domestic situation to see how we can correct the problems which have arisen as a result of the Supreme Court decision.

Will the Taoiseach assure the House that the Government fully support the concept of the full right to travel, the right to give information and the provision of non-directive counselling and that the Government will take urgent steps to change the law in Ireland, whether by way of legislation or referendum, as a matter of urgency, having regard to the fact that those rights as the law stands are severely curtailed or are totally prohibited as the case may be? Can the Taoiseach give some kind of timescale as to when the necessary changes in the law will be brought in?

My best advice at present is that it is not possible to clarify the right to travel or information by legislation. Now that the Community will not accept any change in the Protocol in accordance with the approach we have been adopting, it will have to be considered in the domestic situation by a constitutional amendment.

When will that be?

It is a bit early to say at this stage. The Government will be considering all the options.

Will it be before 2 June?

I take it from what the Taoiseach has said that the option of deletion of the Protocol is ruled out on the basis that we cannot amend without the agreement of the 11 partners. Is the only option now a referendum, on the basis of the advice available to him at the Cabinet meeting this morning? Could he make that advice available to other parties in this House?

We did not have a Cabinet meeting this morning. We had to attend the State visit of the King and Queen of Sweden. The question of how we clarify the position in relation to travel and the provision of information will be controlled by this Oireachtas, and I indicated last week that it appeared a constitutional amendment would be required.

Is the outcome of recent discussions at EC level in accordance with the findings of the soundings taken over the past weeks when, it is understood, agents of the Government approached the EC partners with a view to determining what would or would not be acceptable?

It is true that over a number of weeks we have been extremely busy on the diplomatic front in relation to this problem. Initially member states were very understanding and sympathetic towards our position. The question then arose as to how the matter could be resolved and whether a reconvened Intergovernmental Conference could be considered. That was ruled out. A majority of the member states have also set their face against a new meeting of the IGC with a short agenda. We are extremely gratified at the assistance and help we received from all the member states and the permanent representatives in Brussels in getting as far as yesterday, when Foreign Ministers of the member states made their position clear. It is now up to the Government to look at all options.

Will the Taoiseach agree that the original intention of the Protocol was to ensure that the Maastricht referendum would not become entwined in the abortion debate? Would the Taoiseach agree that the effect of the Protocol is to enmesh the referendum on Maastricht into that debate and that because of this a referendum needs to be held to address the issues of travel and information in advance of the referendum on Maastricht? When the Taoiseach stated to the House that the appropriate persons had been consulted about the wording of the Protocol, did he include within the category of appropriate persons Senator Hanafin?

We ought not to personalise the matter in respect of a person who is a Member of another House. This is not good enough.

It is very relevant.

Deputy Shatter is mischievous as usual.

It is not done here.

The purpose of the Protocol was to give protection to the wording of Article 40.3.3º of the Constitution and to protect the constitutional position from being superseded by European law. We signed an international treaty on 7 February and the position is the same as it was then. The Supreme Court have interpreted in a specific situation Article 40.3.3º and consequently it raises a problem. After yesterday it begins to look more likely that we must address the problem in the domestic situation. Europe is not prepared to reopen the Treaty either to amend or to delete the Protocol. It is up to us to make up our minds as to where we are going.

Will the Taoiseach be addressing it in advance of Maastricht?

I am surprised that Deputy Shatter should ask such a question when his own party could not even see their way to a final conclusion in relation to the matter.


Deputy Shatter should desist from interrupting.

We warned the Taoiseach he could not do it that way.

The advice of the Deputy's party was against European law.

Deputy Shatter's persistence in interrupting from a seated position is not good enough.

The Taoiseach did not quite clearly reply to my previous supplementary, although perhaps it was implicit. Are the Government fully committed to the right to travel and information? I should like the Taoiseach specifically to clarify Government support for those issues. Will he assure the House that when he makes arrangements for the referendum to deal with travel and information he will not succumb to pressures from FLAC and SPUC to introduce additional matters in the referendum?

I am surprised that the Deputy asks a question about travel and information. All our efforts over the past weeks have been to try to find a way to clarify the position in relation to travel and information. The information would be regulated by legislation to be enacted in the Oireachtas. The Deputy should be quite clear on our position. There is no question of its being otherwise.

What about the second point, that outside issues will not be added to the referendum at the behest of SPUC?

I have called Deputy Spring.

I seek mere clarification from the Taoiseach. Even in the absence of a Cabinet meeting this morning I am sure he had time for consultation with his ministerial colleagues. Has it definitely been accepted by the Government that a referendum must be held on this matter? Will that referendum be seperate from the Maastricht Treaty referendum?

As I said, the Government, at their meeting, will be considering all the options. We will take on board the advice of the Attorney General and will consider the suggestions of member states in relation to a solemn declaration or an interpretative statement to see whether that can be of assistance to us. We will consider all the options and make our decision.

What does the Taoiseach regard as being the primary opinion in the debate that is likely to take place between now and the Maastricht referendum, European Community requirements, the decision of the Supreme Court and their interpretation of the Constitution or the need to comply with the Constitution as amended in 1983?

It is very difficult to understand what question the Deputy is trying to ask. We approached this matter on the basis of keeping in close contact with the services in Brussels. At all times we were guided by advice at home as well as by advice available to us from the services in Brussels to ensure that what we are attempting complies with European law. Of course, we were also conscious of the fact that we had to comply with our domestic position. There were times when what was right in Europe was wrong here andvice versa. It is a question of trying to find a way to intermesh the two. All of that is now more or less out of the way in terms of the conclusion of the 12 Foreign Ministers yesterday. We are considering what they said in relation to this matter and we will revert to them very shortly. It is becoming clearer with each day that passes that we will have to find our own domestic solutions to the problems because Europe is not prepared to change the Protocol.

Will the Taoiseach indicate the thinking of the Government with regard to the offer of a solemn declaration? Are we to take it that he does not regard such a declaration as an adequate way of dealing with the questions that have arisen as a result of the Supreme Court decision and complicated by the Protocol? In addition, will he indicate his view or that of the Attorney General as to the likely impact on the Protocol if an amendment to Article 40.3.3º is carried either before or after the Maastricht referendum? In other words, would a change to Article 40.3.3º, regardless of when the referendum is held, not nullify the Protocol?

The Protocol as it exists relates to Article 40.3.3º. I want to make it abundantly clear that any changes we make to Article 40.3.3º will not have the protection of the Protocol. When considering the various options we must consider the existence of Article 40.3.3º and the Protocol as they stand. Any changes to Article 40.3.3º would not have the protection of the Protocol unless the 11 member states agree to change the Protocol, which they have refused to do up to now. Therefore, when we are talking about a new or amended Article, unless the member states agree the Protocol will not be changed. In relation to the question of a solemn declaration or an interpretative statement, it is generally accepted that that does not carry the full legal strength of a protocol. Consequently, I have asked the Attorney General to examine both the interpretative statement and the solemn declaration to see whether they can be helpful to us.

I am calling Deputy Barry. I want to bring this questioning to a conclusion. I will call Deputy Michael Noonan later. I want to dissuade Members from discussing or debating this matter today. This is Question Time.

Will the Taoiseach agree that what this party said a few weeks ago has been borne out by what has happened in the intervening three weeks? The Minister for Foreign Affairs said in a radio programme this morning that the door is still slightly ajar. Has something happened since this morning to change that position?

No, what the Deputy should interpret from that is that the member states have offered us a solemn declaration or an interpretative statement, and that is what is being considered at the moment. COREPER will meet again on Thursday and we hope to respond to them by then.

Nothing happened today?

Nothing happened today to change the position, which we are examining.

(Limerick East): On several occasions in the course of his replies the Taoiseach referred to the Attorney General and his advice. In view of the fact that all these events which are now causing such anguish flowed from the original decision of the Attorney General to injunct a 14 year old from leaving the country, may I ask the Taoiseach if he still has confidence in the Attorney General and his advice?

This is a separate matter and ought not be raised now.

(Limerick East): The Taoiseach wants to answer.

I observed Deputy Garret FitzGerald offering earlier.

(Limerick East): The Taoiseach referred to the Attorney General's advice.

Two courts upheld that view.

The Deputy should read the judgment.

In relation to a reply by the Taoiseach a moment or two ago, may I ask him whether, if a constitutional amendment were introduced taking the form of an additional clause following Article 40.3.3º along the lines, "nothwithstanding the contents of Article 40.3.3º the right to travel and to information is protected", the protection afforded to Article 40.3.3º by the Protocol might still remain in respect of that subclause of the Constitution?

The protection that exists under the Protocol as it stands at present applies to Article 40.3.3º and nothing else. Any changes to that Article would not have the protection of the Protocol without the agreement of the 11 member states to change the Protocol.

Even if a separate clause was inserted?

Whether or not it is a separate clause. The Protocol specifically relates to Article 40.3.3º, and that is the advice to me in relation to the international treaty requirements we signed on 7 February this year.

In order that the House can have some idea of the extent of the problem and the timescale invovled to deal with it, will the Taoiseach tell the House by what date we are required to hold the Maastricht Treaty referendum?

We are considering the tightest possible timetable at the moment. I am sure the Deputy will be aware from his party that we spent a considerable time trying to achieve political consensus in this area. The Danes have decided to hold their referendum on 2 June and other administrations are engaged in the process of ratification.