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JOINT COMMITTEE ON EUROPEAN AFFAIRS debate -
Monday, 24 Mar 2003

Vol. 1 No. 17

Convention on the Future of Europe: Ministerial Presentation.

We will continue discussion with members of the Convention on the Future of Europe on the last plenary session and items on the agenda for the next one. We are joined by Mr. Prionsias de Rossa, MEP, Deputy John Bruton and Mr. Bobby McDonagh, Department of Foreign Affairs.

The convention met in plenary session on 17 and 18 March to discuss the draft protocols on the application of the principles of subsidiarity and proportionality and the role of national Parliaments in the EU. There were also the presentations of draft Articles 38 to 40 on Union finances, draft Article 31, part 1 on freedom, security and justice, draft Article 24, part 2. Draft Articles 24 to 28 and 32 to 33, which deal with the simplification of the Union's legal instruments, were also the basis at the last plenary session. These draft articles were discussed with convention delegates at the joint committee on 3 March.

The convention is to meet again in plenary session on 2 April to continue the debate on Articles 1 to 7 and again on 3 and 4 April. I propose that the joint committee today discuss the draft Articles on the Union's finances, freedom, security and justice and the protocols on the role of national Parliament and subsidiarity and proportionality. The Department of Finance has provided briefings on Articles 38 to 40. However, the Department of Justice, Equality and Law Reform was unable to provide briefings to the joint committee, as it is seeking the Attorney General's advice before determining its position. I understand the briefing will be available on Wednesday.

Deputy John Bruton was the chairman of the working group on freedom, security and justice and was part of the Presidium that recommended the text. It will be interesting to hear from him on this matter. I propose to take discussion on the Union's finances first.

Mr. Bobby McDonagh

This is not an issue on which there is a great deal to say. The Praesidium has proposed - the plenary has accepted its advice - the establishment of a working group to examine these questions. What has been tabled so far for discussion at the next plenary session is a small number of articles which, to a significant extent, reflect existing procedures. The working group has been set up to see whether there should be more radical change in respect of the way the Union's finances are managed. What will ultimately come fall for discussion at the plenary will not be the articles that have been tabled here, but the outcome of that working group.

As far as the Union's resources are concerned, the paper tabled by the Praesidium repeats the current arrangement in the treaty that the Council acting unanimously on a proposal from the Commission shall lay down provisions relating to the EU's own resources. That is an option with which we are comfortable. However, we have to await the outcome of the working group to see what other options it may examine. There are those who favour a different approach which does not necessarily involve ratification of own resources decisions by all member states in accordance with their respective constitutional requirements. Our position is clear on that, but it is an unusual subject because, unlike the justice and home affairs provisions, we are not yet sure what the plenary session will be asked to consider.

There is a general sense in the Convention - which Ireland will consider positively - that the budgetary procedures should be simplified just as the legislative procedures are being simplified in order to make them more comprehensible to citizens. It is also recognised that there must be - as there is at present - an appropriate balance between the European Parliament and the Council in the adoption of the budget, which is proposed by the Commission. The working group has been specifically asked to look at that question to see whether something similar to the co-decision procedure that applies in legislation should also apply to the budget.

We are concerned that there traditionally has been a distinction between non-compulsory and compulsory expenditure. A large part of the latter relates to the Common Agricultural Policy. That is a distinction which we have favoured in the past and which makes sense to us. At this stage, however, we do not have the raw material with which to deal. The working groups will hold a series of four or five meetings in the coming weeks and, when published, its report is likely to form the basis of discussion at plenary level.

Regarding the financial parameters within which the EU plans and implements its budgets, I understand that if this proposal goes ahead, it would be incorporated into the treaty. At present, it is more of an operative procedure. The note states that the biggest change will possibly be the explicit requirement that expenditure cannot be included in the EU budget unless there is a specific legal basis for it. In other words, it would not suffice to put an expenditure proposal in the EU budget. Is it correct that this would be a major change?

Mr. McDonagh

On the second point, it is accepted that any area of ambiguity should be removed and that there should be a legal basis for expenditure in the Union. As far as the financial perspectives are concerned, the Chairman is correct. That is another of the questions which will be considered by the working group. The financial perspectives system is working well and it is agreed between the Council and the Parliament. The budgetary procedure is annual in nature but there is a case for incorporating the financial perspectives - which take a multi-annual perspective - into the treaty. The details of this and how it will be achieved will be examined by the working group.

We will have an opportunity to discuss that in greater detail at a later date.

Mr. McDonagh

Yes, as soon as the report of the working group becomes available.

There was a possibility that a second working group would be established to consider whether the Union should have its own resources. The latter would be determined more as a matter of right for the Union, rather than having it remain dependent on member states. I am convinced that it was agreed that the second working group would be established. A chairman was chosen, but it seems that only one working group has been established. I am not sure what is the reason for that. There are two separate issues here, namely, that of the procedure - with which, as Mr. McDonagh stated, the existing working group is dealing - and the question of whether the EU should have its own resources. The latter may be the subject of deliberations by another working group.

We will be obliged to monitor these matters and to deal with them in greater detail when we receive the report.

Proinsias de Rossa, MEP

It is early days in respect of this issue, but time is limited. The powers that be are proposing that we should conclude our business in June, but there are many other issues arising. We must keep abreast of what is happening with regard to this issue and return to it as soon as possible.

We will monitor developments closely.

Mr. McDonagh made an important point which the committee will need to consider, namely, the question of compulsory and non-compulsory expenditure and the different ways in which these are dealt with. It is perceived that it suits Ireland that the European Parliament does not have co-decision in regard to compulsory expenditure, most of which relates to agriculture. There is a perception that if the position was to change and the Parliament was to have the full say in this area, that might be inimical to the interests of Irish agriculture. There are other views on that subject.

It might be helpful if Mr. Cannock obtained for us a detailed note on the implications of compulsory and non-compulsory expenditure so that we might do some preparatory work before the matter comes before us.

We agreed that we would take the protocols, the role of national Parliaments and subsidiarity and proportionality together with the draft articles on freedom, security and justice. Deputy John Bruton has been chairman of the body dealing with the latter areas. Perhaps Mr. de Rossa might like to lead off the discussion on the former areas.

Proinsias de Rossa

The Amsterdam treaty contains a protocol which outlines the role that national Parliaments would play in the European Union decision-making process and which provides that document should be provided within a six week period. There were two working groups in the convention: one dealt with the question of subsidiarity; and the other focused on the role of national Parliaments. Based largely on the reports of those working groups, two new protocols have been drafted. These do not necessarily reflect the entirety of the Amsterdam protocol because the intention is to try to keep them as short as possible. They have taken the essence of the Amsterdam protocol as well as the conclusions of the two working groups and produced one protocol on subsidiarity and one on national Parliaments.

I have argued in the convention that I see no good reason for two protocols dealing largely with the same issues. There is broad consensus in the convention regarding the contents of both protocols. There has been some discussion about the supposed necessity for a "red card" in circumstances where if the Commission produced a proposal which was the subject of objections by a sufficient number of member state Parliaments on the basis of a reasoned argument that it breached subsidiarity, the proposal would have to be withdrawn.

There are concerns in the convention about the notion of the red card, the first being that it impinges on the right of initiative by the Commission. It would therefore be unwise to take that path. The other matter is that, if the Commission produced a proposal which was so completely unacceptable to a large number of the national Parliaments - various figures have been suggested, ranging from one third to two thirds - there clearly would be something seriously amiss within it. That would require a solution other than simply having a proposal withdrawn. My sense - with which Deputy John Bruton, the Minister for Foreign Affairs, Deputy Cowen, and Philip may not agree - is that the red card idea will not survive the convention discussion. Ms Gisela Stuart has been asked to redraft the proposal on the national Parliaments based on the discussion in the convention. She was one of the idea's strongest proponents, but I am sure she will take the views expressed at the convention into account.

On subsidiarity and the role of national Parliaments, there are provisions that documents will be available within a certain time and that decisions cannot be made within a set period based on those documents until the Parliaments have had an opportunity to examine them. I have tried to inveigle my own idea of the European week into the protocol. I am not sure I will succeed in doing so. There is certainly broad support for the idea, but I am unsure if the protocol will refer to it. By and large, there is a high level of satisfaction among the national parliamentarians represented in the convention with the draft protocols, with some tightening up and the explanation of some terms.

I have not much to add. I agree with what Proinsias de Rossa has said about the red card. The idea that two thirds of the national Parliaments could stop a proposal is not a good one, since it would introduce another element into the legislative process, duplicating what the European Parliament and the Council of Ministers do as legislators. It would mean a third legislator with the right of veto if it could muster the required two thirds support. That would complicate the decision-making process of the Union more than at present. It does not appear in the draft. Ms Gisela Stuart has proposed it in a personal capacity with some support, but no majority among the delegates of the national Parliaments. If it does not have one there, it certainly does not have one among the other components, so it is not really a runner.

One aspect received a poor reception. In the draft protocol there is reference to Parliaments being able to come in again during the conciliation process. There was a notion that, where the Parliament and the Council of Ministers, the two legislative houses of the European Union, had differing views, and a conciliation committee had been put in place to resolve the differences between their positions, the national Parliaments would be able to come in again with a subsidiarity warning at that juncture. Unlike the red card, that is in the draft. My colleagues may disagree, but I do not think that it has much support. The majority view would be that paragraph 7 should be removed. If I were asked about the end result, I would predict that the protocol would remain as it is without that paragraph.

I hope, in the case of national Parliaments, there might be something more positive said, not just about COSAC, but about the arrangement of interparliamentary activities between specialist committees. It is obviously a matter for this committee to consider whether it would welcome that sort of thing, but it would make a great deal of sense, for example, for the chairmen and vice-chairmen of the agriculture committees of all the Parliaments to meet as a matter of course once or twice a year. Perhaps that should be done under the rubric of the Committee on European Affairs or in some way with its approval to ensure some measure of coherence. However, people might submit early warnings simply because they have not read a document and fear there might be something wrong with it, wanting to press the button simply to strengthen the negotiating position of their Government. If that is to be avoided and the subsidiarity early warning system is to work without being abused, it is quite important that there be a high level of understanding - not simply in the European affairs committees of the Parliaments but in each of the specialist committees - of why proposals are being put forward. In that way, the early warning system will be used with good cause based on reasonably well researched information and not simply as a grandstanding tactic. One way of achieving that is to ensure that all committees dealing with European Union matters meet one another, the Commission and the Parliament regularly and know why certain proposals have emerged, understanding the background.

The only thing about that is that one would need a large amount of resources. We do not have the resources to do even the job of the Committee on European Affairs. Perhaps Mr. McDonagh would like to comment?

There is no doubt Mr. McDonagh would like more resources for the Department of Foreign Affairs. If the truth were told, one would see that the Department has a long list of embassies it would like to open. Your theme, Acting Chairman, deserves constant support. None of these mechanisms will work, particularly for small island nations in Europe, unless they put in disproportionate resources. The further we are from the centre and Brussels, the greater must be the resources we put in. It is interesting that countries such as Denmark in Scandinavia put in large amounts of resources while the Belgians need not bother, for they are sitting there in Brussels anyway.

That was a very fitting introduction for Mr. McDonagh.

Mr. McDonagh

I will say a few words on the two protocols. As the committee will be aware, the Government attached great importance to enhancing the role of national Parliaments in the life of the Union, and the other Irish representatives also do that. The Government has made clear several times the key role that Parliaments can have in anchoring the Union in the member states and in bringing it closer to citizens. The work of this committee and the statutory basis of its scrutiny function are testimony to that role. The Government has not yet tabled any amendments to the two specific protocols, as it felt the balance was about right and evidence of the Presidium's good work. As in other areas, members of the convention retain the right to table amendments later, but at this stage we feel they have been got more or less right. In the plenary debate, Deputy Roche, who regrets that he cannot be here today, being in the Czech Republic, expressed his broad support for according national Parliaments the right to address a reasoned opinion to the Commission and for the suggestion that, if one third of national Parliaments do so, the Commission will have to reconsider a proposal.

We do not favour the red card option. As Deputy John Bruton has said, it is unlikely to run. It is really a matter of principle if one can cut across the Commission's right of initiative by instructing it not to carry forward a proposal. However, if a large number of national Parliaments issue yellow cards, in practice the Commission will not carry forward a proposal in its original form. The Minister also expressed support for the proposal that national Parliaments could continue to play a role in monitoring subsidiarity as the legislative process continued. However, as Deputy John Bruton said, there was nothing like unanimous support for that. Also, member states would have the right to appeal to the Court of Justice at the end of the legislative process if they feel the concerns of their Parliaments on the subsidiarity criteria have not been met. It is fair to say the protocols generally received a warm welcome. Overall, at the convention, Ireland has a few difficult areas as have other member states. It is important not just to see the convention in negative terms, it is also very positive. At the convention plenary last week we dealt with three issues where there is a large measure of agreement and where the convention will represent significant progress: strengthening subsidiarity, the role of national Parliaments and on the simplification of instruments which is not on the agenda today but on which there was a one day debate.

For people reading this later, perhaps you would put on the record a description of "subsidiarity" and "proportionality"? We are getting used to the term "subsidiarity" but now we are hearing about "proportionality". I know from the brief what it is but, perhaps, Mr. McDonagh might say something about it because anybody reading this might not know.

Mr. McDonagh

"Subsidiarity" is sometimes seen as a one way process, meaning that things should be passed down from the central level to the national level and beyond that to the regional level. In fact, it is a two-way process. It really means, except where the Union has exclusive competence, action should be taken at the level where it can be most effective. If there is added value of action at the Union level, provided there is a Union competence, then that is the appropriate level. In so far as things can be done equally well or better at national level, there is no need to centralise for its own sake. "Proportionality" means that where the Union does have competence to act and decides to act it should use the form of action which is most proportionate and should not, for example, go for harmonisation of legislation where a much less heavy procedure would be appropriate. Another way of summarising "subsidiarity" is that action should be taken at the lowest effective level.

Proinsias De Rossa, MEP

I would delete the word "lowest" and say it should be taken at the most effective level because the most effective level in some cases is at European level. I accept the point that has been made. What I want to come back to is the question of conciliation. I did not want to lead on it because, although I am representing the national Parliament, I am a member of the European Parliament and it might be seen that I was defending a European Parliament position. The conciliation is very much a process which the European Parliament is involved in as co-legislator with the Council. The argument is that subsidiarity is a political principle. If one defines that proposed legislation is within the parameters and is fine for the Commission to proceed with at the beginning, it does not make sense that the national Parliaments could come in at the end of the process for the detail of that legislation. Having said that, there are still concerns that a proposal might emerge from the Parliament, the Council or the Commission at some point in that process which would take it outside the proper parameters. At the close of the last session, the President of the Convention indicated that he recognised both sides of the argument and he would see what wording could be produced which would not give a legal right of intervention but, at least, a protection that in the course of the processing of the Commission proposal it would not drift outside of the parameters already established for it.

I said we would take the justice area together but given the way in which this is developing it may be as well to leave the national Parliaments, subsidiarity and proportionality for now and come back to the justice issue. Deputy John Bruton might answer this when he replies. I note in all the notes to the protocol the representations made by various members but the representation made by Deputy John Bruton and Deputy Carey, as requested by the joint committee, on access to the European Parliament is not mentioned in any of the notes. I know they did it because Deputy John Bruton sent us a copy of the letter.

I, along with Deputy Carey, put that proposal in as a contribution. Because I am a member of the presidium I have made a decision that I will not submit amendments to any presidium proposals. It would be like a member of the Cabinet submitting amendments to legislation produced by the Cabinet. I have, somehow, broken this rule but I do not propose to submit amendments.

There are 83 amendments and observations. This committee submitted an observation and somebody should put it on the agenda. If Deputy John Bruton cannot do it perhaps we could ask Deputy Carey to do it because we expect it to be put on the agenda.

It was my suggestion that the joint committee might make this proposal because it was a suggestion you made. I decided to suggest to you that we might take it further than something you said here and put it down as a contribution and it is on record. For the reasons explained I did not consider it proper for me to re-introduce it as an amendment in this area but it would be good if Deputy Carey, or perhaps Mr. De Rossa, put it in because neither of them are in the difficult position that I am in.

We will get the joint committee to chase that matter up with Mr. De Rossa and Deputy Carey. To put this in context, the working group produced a number of proposals based on three main themes: reinforcing the way in which the institutions involved in the legislative process takes into account and applies the principle of subsidiarity, setting up a political early warning system to strengthen the control national Parliaments have in monitoring subsidiarity and expanding the scope for referral to the court on the grounds of failure to comply with the principle of subsidiarity. It goes on to say, that after looking at these questions again, the Presidium agreed to propose that: the power to activate the early warning system should be given to each national Parliament - it says in what context; the threshold should be set at one third of the national Parliament, as suggested by the working group; and the Court of Justice should have jurisdiction to hear and determine actions brought by member states on grounds of infringement of the principle of subsidiarity, if necessary, at the request of a national Parliament and-or regional Parliaments with legislative powers. It also adds that the committee of the regions should also have the same right as regards legislative acts on which it was consulted. Perhaps somebody would address on what basis that would apply in Ireland when we come back to dealing with the question.

When we finally take this treaty to the people it will be necessary to have a "back to basics" campaign by explaining the terms "subsidiarity", "proportionality" and so on but that is another day's work which we have to consider. In relation to the European week in national Parliaments, which we have discussed several times at this joint committee, Mr. De Rossa, MEP, stated that it is not in the proposed protocols. Does that mean the issue is dead or can it resurface in some other format? What progress is being made in that regard across EU states?

On the red card idea, I have never been to the European Parliament but I get the impression it does not argue about things and it does not steamroll anybody's opinion or force anybody into making a decision they do not wish to make. If the Commission arrives at a proposal which national Parliaments do not like there should be an opportunity for the national Parliaments to say "No". The answer Mr. McDonagh gave is that if there is a multiplicity of yellow cards, the Commission will simply back down, and this has always been the practice. It is almost as if one does not want anything as vulgar as the red card, as if a censure had come from the national Parliaments and the Commission was not doing its work or was not listening. We should not be afraid to support that proposal. If enough yellow cards constitute a red card and the Commission will stand down if there is such a situation, why not put it into the article because, as Deputy Haughey said, when we have to sell this to the public we will need firm evidence that the national Parliaments have influence and that the principle of subsidiarity is directly enforceable.

Mr. McDonagh has assured us that as long as a sufficient number of people complain, we should not be concerned about it because they are good at what they do. That would not be easy to sell on the doorsteps and it should be reconsidered.

I respectfully disagree for the following reason. It is one thing for the national Parliaments to be able to ask the Commission to review a proposal. Such a request has a certain moral and political force, but it is not a definitive act which stops something happening. The red card, however, is of a qualitatively different nature in so far as it would stop the proposal. It is important that the Commission's right of initiative not be subject to that sort of veto because the Commission is a crucial protector of the general European interest and of smaller countries, in particular.

To have a red card would be to constitute the national Parliaments as a third house of the Legislature that had one power only and that would be to say no. In terms of the constructive dialogue, one needs to build Europe. Such a negative mechanism should not be given that sort of status.

Does the Deputy believe that there is a democratic surplus?

Yes, in one sense. I would draw attention to the obvious fact that national Parliaments elect the Governments that are represented on the Council and they can remove them if they do not like what they are doing. National Parliaments, through the Ministers in the Council, have the right to say no in any event because if they do not like the policy a Minister is pursuing, they can seek to have them removed. If a red card were to be introduced, we would be reinforcing the nay-saying tendency that is already extant in the Council by giving it an additional card to play, in addition to the card it is entitled to play by forming a blocking minority under qualified majority voting. We would be adding this additional channel for nay-saying, which is red cards from national Parliaments.

A situation could arise where a proposal, depending on the arithmetic, which had a qualified majority in the Council could be red-carded because votes would be counted differently for the purposes of the use of the red card due to the fact that there are different weightings in the Council. I cannot give illustrations without going into the mathematics, but it would be a difficult arrangement. The answer to this question is to ensure that these proposals are properly scrutinised at the outset.

That leads back to the question raised by the Chairman earlier in regard to paragraph 8 - to which I also referred earlier - regarding the part of the protocol that refers to the court. For political purposes, national Parliaments and their Governments are almost one and the same, certainly in this country because all of the business we transact is controlled by the Government. If national Parliaments/Governments are unhappy with a proposal that has been changed - following a process of conciliation - from what was originally put forward, they have the right to go to court. If the proposal breaches subsidiarity, it will be stopped by one country which has the right to go to court. However, to have a situation where a proposal that might not breach subsidiarity could be stopped under a red card, without the case ever going to court, would lead to subsidiarity being abused as a mechanism for stopping proposals in a fashion that is not consistent with subsidiarity in the understood meaning of that term.

Subsidiarity means that matters should be dealt with at the lowest effective level. It does not mean at the appropriate level, on my reading of the encyclicals, which are the basis of this aspect. The Chairman and I regularly read encyclicals, as the committee will be aware. All other things being equal, as the late Donogh O'Malley said, if something can be done equally well at national level as at European level, subsidiarity means it should be done at national level.

I should have introduced Deputy John Bruton with the words, "Annuncio vobis gaudeum magnum”.

Proinsias De Rossa, MEP

That is a point, but I do not intend to get into the question of whether it is the lowest or the most appropriate.

In terms of explaining subsidiarity and proportionality, the Deputy is correct. There is a major task to be carried out. Even if nothing changed in terms of what we are doing in the Convention, there is a necessity to explain what we mean by proportionality and subsidiarity. It does not mean that we object to something simply because we do not like it. The objection has to be based on reason. A reasoned case has to be made that in some way the proposal from the Commission is not consistent with the business of the European Union being done at European level. It is important to bear that point in mind.

The debate on this point was synopsised in the Convention last week by Andrew Duff, a UK liberal, who asked about the purpose of the Council. If we want to give power to the Parliaments to stop the Commission from doing X or Y, what role will the Governments play in the Council? The primary responsibility lies with the Council to ensure that matters are dealt with on the basis of proper application of subsidiarity.

That begs the question, which I also asked, about the purpose of the national Parliaments. I would argue that the primary role of the national Parliaments is to hold their Governments to account and to ensure that the legislation proposed by them is appropriate. What we are doing in the Convention is giving an additional role to national Parliaments, where they have the majority, so that they can, if needs be, almost circumvent their Governments.

The question arises as to how that will apply. Even if we put in place an early warning system - leaving aside the red card argument - how will it work? How would the Dáil, which has a majority support for the Government, make a decision that what the Government has decided in Council is not appropriate under subsidiarity? The Government will not allow a majority of the Dáil to vote against it. One aspect the committee might usefully examine is whether the early warning process would work in an effective way because there is a bind, if I can call it that, on the part of Members of Parliament.

On the question of the European week, that is a significant issue in terms of the response I have received to the idea. As the protocol is currently worded, it is possible to have a European week because it refers to co-ordination of activity by national Parliaments. I have sought an explicit reference to the idea of a common week where the Commission would present its programme and Parliaments across Europe, in the presence of the Commission and MEPs, would debate it. I am not sure whether we would succeed in having it incorporated, but there is no opposition to the idea. It is a matter of us politically promoting it and trying to get it put in place.

The Chairman raised a question about the Committee of the Regions. The point to bear in mind is that when the convention talks about regions, it tends to talk about regions that have a legislative role. We do not have regions in Ireland that have a legislative role. However, such regions exist in Germany and Spain.

This refers specifically to the Committee of the Regions.

Prionsias De Rossa, MEP

Yes. The Convention is also discussing the concept of differentiating between those who do not have a legislative role and those who do. It is not referred to specifically here, but ultimately it is a question of agreement as to how that is done. The Germans are particularly uptight about this issue because they do not want the German Federal Republic to disintegrate into 15 German regions seeking to make European law and looking for a place on the Council.

I will ask Mr. McDonagh to conclude on this section and we will then move on to the justice area.

Mr. McDonagh

With regard to Deputy Haughey's question on having a European week, the Government is supportive of Deputy Proinsías De Rossa's desire in that regard. If that can be incorporated in the protocol, all the better. If not, however, it is something that could be done even if it is not formally in the protocol.

On the question of the Committee of the Regions and the appeal to the Court of Justice, what the Praesidium has brought forward is a compromise. Some would like individual regions to have a right of recourse to the Court of Justice, but what the Praesidium has proposed is that the Committee of the Regions would have this right and that individual member states would have it on an equal basis. In some cases, an approach by a member state to the Court of Justice at the end of the legal process would be triggered by a national Parliament, as in our case, and in other cases regional authorities could also do so.

On Deputy Andrews's question regarding yellow cards, what is proposed - it now has a wide measure of support - is seen as a significant improvement. The obligation on the Commission to review its proposal if it receives a yellow card from a number of Parliaments is a significant strengthening of the position of national Parliaments, but in a way which preserves the balances. The balances in the Union have suited Ireland well. These include the Commission's right of initiative and the balance between qualified majority voting and unanimity. In some areas, we believe unanimity is the appropriate procedure. In other instances, however, qualified majority voting has worked very much to our advantage. It is not that Ireland does not want the Commission to table proposals because often the proposals it tables are often measures we very much want. We believe this new proposal will strengthen the position of national Parliaments while preserving an appropriate balance.

As others have said, the key function of national Parliaments is to control what their Governments do in Europe and, in some areas, unanimity applies for the member states and sometimes qualified majority voting applies. If an individual national Parliament had the right to issue a red card, it would mean, in effect, that unanimity would be required for everything. While there are some areas where we believe Governments should have the right of veto, there are many areas where the Union functions effectively on the basis of qualified majority voting and the areas where that applies should probably be extended. For example, it has worked very well in the agricultural area in terms of the internal market.

This committee has legislative power as a result of it passing Committee Stage of the relevant legislation last summer. Since October, we have reviewed in advance all draft regulations and directives. I am not sure of the exact number, but we have reviewed over 120. These range from safety in traffic tunnels to compensation for travellers delayed on flights to the unfreezing of suspected al-Qaeda funds by the Central Bank and others. This is an area where there is a source of information on which journalists have not, to any great extent, picked up so far. I accept, however, that some of them have identified it.

The fact that we are proactively vetting those measures and that we must, by law, receive them within four weeks of their being received by a Department is a great advance. The Minister also comes before the committee before he goes to the General Affairs Council every month and that has been a useful and proactive way of influencing the agenda.

I am anxious to move on to the justice and home affairs area. I call Deputy John Bruton.

One point that was not mentioned is that when a proposal is published, there is a demand that in the six week period national Parliaments have to put in their early warning, no discussions or compromises should be made between Governments about it in order to ensure that national Parliaments' views are not pre-empted in any way. That is an important point that relates to what the Chairman said.

In our sub-committee on scrutiny, while about 95% of the proposals come to it, there are also proposals - such as those relating to salaries for officials in Brussels and matters of that nature - which come with the explanation that they are important and, therefore, must be rushed through. We should get to the stage that no draft regulation or directive goes through until it has been vetted in the way that our law provides for. I call Deputy John Bruton to lead us into the area of security, freedom and justice.

I do not want to speak at great length because Members have the relevant articles in front of them. I will explain the distinction in this regard. It is proposed that Article 31, on the second page of the draft, will be included in part 1 of the treaty, which is the basic document setting out the procedures and the powers of the European Union. Some want to delete this on the grounds that we do not need any reference to justice and home affairs in part 1 of the treaty and that it should rather be dealt with solely in the policies issue. I do not agree with this proposal because certain specificities in regard to freedom, justice and home affairs are provided for - such as, for example, to be able to use the red card, only a quarter of national Parliaments rather than a third would be needed - in the article.

In addition, unlike any other area, it is to be a continuing right of initiative of member states that where five member states come together they can table a proposal for consideration on justice and home affairs, whereas in the rest of the work of the Union, the only initiator may be the Commission. Those two specificities recognise that justice and home affairs is an area that has been very much proper to nation states. The use of force to detain citizens is one of the marks of sovereignty of a state and, therefore, individual states should have that additional protection in this area if we move into it. That is a good reason for having Article 31 in the treaty because it provides a recognition of this difference. Particular reference to this is made in Article 31.3.

Page 3 of the draft covers the various articles, over which I will not delay. There is the definition of the area and what is covered and there is the European Council. It provides that the Heads of Government shall define the guidelines for the legislative and operational actions within the area of freedom, security and justice. This is not new in the sense that it is in the treaty, but it is important that it should remain there.

The Tampere Council, where the Taoiseach, Deputy Bertie Ahern, and others set out an ambitious programme of action on cross-border crime, is an example of Heads of Government unanimously deciding that these are priority areas of action. It is important that the treaty should retain that role for the European Council, which acts always unanimously as a counterweight for the fact that elsewhere in the articles we are proposing that qualified majority voting should be allowed for certain defined areas of procedure and certain defined areas of cross-border crime to allow an approximation in those areas to facilitate the mutual recognition by one country of the decisions of another within the European Union.

If there is to be some measure of majority voting in the detailed area of policy, it is important that the outlines of the policy to be followed should be set unanimously by the European Council. I know that some, notably in the European Parliament, would like to delete this reference to the European Council, but it is something that I intend to stoutly defend because it was part of the compromise that enabled us to get the report agreed.

There is a specific reference to national Parliaments in Article 3, which I have already explained, with regard to the lower threshold for the early warning system.

There is provision in Article 4 for an evaluation mechanism. This is important from the perspective of ensuring that if, under the European arrest warrant, we are going to send an Irish citizen to Poland - on foot of a warrant issued by the authorities in that country - in respect of a crime allegedly committed there, there should be a Europe-wide mechanism for evaluating the procedures in all countries to ensure that they have the highest levels of civil rights protection for people who may be subject to such arrest warrants. It is important to make the point that we have already agreed to a European arrest warrant. Much of what we are doing here is ensuring that it is only exercised in an acceptable fashion.

The next provision in Article 5 provides for operational co-operation between the police authorities and others. There is an exception for measures concerning public order and internal security. This is to allow countries to act to maintain law and order. If they have to do certain things to maintain law and order in special circumstances, these are protected from the common norms that would otherwise apply. That reproduces something that is already in the treaties. It is not a contentious issue.

Article 8 refers to the dual right of initiative. This is a novelty in so far as, within this area of the unified treaty, there is a right of initiative for a quarter of the member states. Article 8 states that the Court of Justice shall not review the validity and proportionality of operations carried out by the police and law enforcement services of a member state or the exercise of the responsibility of a member state with regard to the maintenance of law and order and the safeguarding of internal security. That is a counterpart to Article 6, to which I referred earlier, which protects the right of member states in those situations to set their own rights.

With regard to checks on persons at borders, we want to ensure the highest possible uniform standards in regard to controls in this area. Obviously, if we are going to have free movement within the area and a common policy on immigration and asylum, we want to have high common standards of control on people entering the area.

There is provision for a common policy on immigration and asylum provided for in the subsequent articles. Most countries readily agree to this matter, although I understand there is some reluctance by the Germans to agree to QMV in this area. That was not expressed strongly in committee, but it seems to be emerging now. I explained to some Germans who raised this with me that if they want to unravel this, many other parts of the compromise they may be seeking will also unravel. It is one of those balancing acts.

Article 14 provides for judicial co-operation, including the mutual recognition and enforcement of judgments. This does not just apply to mutual recognition of prison sentences, but also to matters such as disqualification for driving or acting as a company director.

Interestingly, the remaining material is where the really politically contentious matters lie. These include, in Article 17, the introduction of qualified majority voting in certain limited areas of substantive criminal law. That relates to crimes that are listed; it is not open-ended. There is also provision for Eurojust, which is a co-operation mechanism between European prosecutors.

The question of a European public prosecutor's office was somewhat contentious. When these articles were first published, there was shock/horror reporting in the British press at the idea of introducing a European public prosecutor. Of course, the journalists in question had not read it very closely because it states that a European public prosecutor "may be introduced" if the Council, acting unanimously and after obtaining the assent of the European Parliament, decides that it wants to do so within the context of Eurojust. Effectively, therefore, every country has a veto on this. A number of countries - including Ireland, although we are not the only one by any means - have indicated that they are not keen on it. The way this is phrased provides a legal basis for it to be done in future if people so desire, but it does not require it to be done. I think it is unlikely to happen in the short-term and that should be reassuring to those who have concerns about this matter.

I have a slight difficulty in that I have to leave at 12.20 p.m. so the Vice-Chairman, Deputy Haughey, will take the Chair. A number of members are indicating, but I wish to pose a couple of questions.

Perhaps Deputy John Bruton and his colleagues might explain the concerns that have been expressed about the implications for the common law versus Napoleonic law tradition, in terms of the common approach to these issues. I understand that some concern has been raised about that matter. Article 23 states that the Council, acting unanimously, shall adopt law and framework laws laying down the conditions and limitations under which the competent authorities of the member states referred to in Articles 13 and 15 may operate in the territory of another member state in liaison and in agreement with the authorities of that state. Perhaps Deputy John Bruton might tell us what is envisaged in this particular case.

The Deputy has already referred to the European public prosecutor, but I wish to refer again to Article 14. He touched on it in respect of judicial co-operation on civil matters. The article states that the Union shall develop judicial co-operation in civil matters based on the principle of mutual recognition of judgments and decisions in extra-judicial cases. The term "extra-judicial cases" has all sorts of possible interpretations, so perhaps the Deputy might indicate what is meant by it.

The article proceeds to say that such co-operation shall include the adoption of measures for approximation of national laws having cross-border implications. What happens, in a Union of 25 member states, if two or more countries have similar cases going on at the same time, yet arrive at different interpretative conclusions? How would mutual recognition operate in those circumstances? How would it work in practice? I have a number of other questions, but other Members want to come in so I will leave it at that. I call Deputy Andrews, who will be followed by Deputy Quinn.

Could I answer those questions?

If the Deputy wishes, yes.

They are important. I cannot throw too much light on this argument about common law versus Roman law. It is more an intellectual argument. The whole principle of common law, in my view, is one of being practical about things and moving forward on a practical basis. It seems that the Union will operate on a practical, case-by-case basis, working towards an approximation of laws in a practical, concrete fashion. I cannot see any fundamental problem of common lawyers dealing with that sort of reality at European level, but there are eminent lawyers here who may be able to elaborate on this concern.

The Chairman asked for an illustration of how Article 23 might be used. If somebody living in Dublin was suspected of having committed a crime in Germany and the police there wanted to interrogate him, Article 23 would provide a means whereby he could be interrogated by a German police officer in the presence of the Garda Síochána. The article would regulate that sort of thing.

Proinsias De Rossa, MEP

And under Irish law.

Under Irish law or the law that has been agreed. In some respects that law might have been approximated under the provisions here to ensure that German and Irish laws were not so completely different that the German policeman coming here did not know how to proceed.

Is the motivation behind it based on avoiding the extradition process and the delays attached thereto?

It is probably a good deal wider than that. It is an illustration of how it might be used. I am not in a position to provide too much help about what is meant by extra judicial cases. I may wish to explore it more fully and I thank your for raising it with me.

The last point the Chairman made illustrated why we need some measure of qualified majority voting in this area. If there was a common area and a cross-border element to a crime, the use of completely different legal doctrines and systems would make it very difficult for one court to recognise the decisions of another because they would use concepts that are so divergent that it would be difficult to have mutual recognition. To allow for mutual recognition to work, the idea is that there would be some commonality between what constitutes an offence and an appropriate procedure between the different countries.

The idea of a European public prosecutor's office is a good one. Why is the Government opposed to it? In the modern era, real threats to security often arise from non-state bodies, so this appears to be a sensible way to proceed.

Article 1, dealing with enforceable judgments, provides that the Union shall facilitate access to justice, particularly by the free movement of documents and judgments on civil matters, based on the principle of mutual recognition. While it allows for mutual recognition of judgments in criminal matters, it does not do so in civil matters.

Is that not provided elsewhere in another article?

Article 1 refers to mutual recognition of judgments in criminal matters and the approximation of criminal laws, but it is more vague on the question of civil matters.

That aspect is perhaps covered by Article 14.

As far as I am aware, the provision regarding civil mutual recognition is more limited.

The danger I wish to highlight is that of jurisdiction shopping, which can arise in the United States where people travel to different jurisdictions where laws are more attractive to them, especially in commercial and legal situations. Is the convention aware of this danger and, if so, has it been discussed?

Yes. It is why we want some measure of approximation of both the procedures and the penalties so that people will not engage in jurisdiction shopping. However, there is a little more to the issue than that and I will return to the Deputy on it because there is much concern about it.

I cannot explain why the Irish and other Governments are not so concerned about a European prosecutor, particularly with regard to the issue of attacks on the Community's interests, for example, fraud on the CAP. For example, it could arise that the local prosecutor in some part of Italy, where everybody was involved in a scam, might not be keen to prosecute the case, especially if he was seeking re-election. A European public prosecutor might be needed to step in to ensure that European interests are protected. That is not a problem in Ireland where our prosecution system is politically independent. We may not see the need for a European public prosecutor because the record of the DPP is so good. However, there is a demand for it in other countries. There is a worry that if this body was created it may be difficult to curtail, but I hope it will be looked at again.

Proinsias De Rossa, MEP

The question of habeas corpus is one of the concerns regarding the difference between the common and Napoleonic law. However, there will be built-in protections. For example, if the Irish State is unhappy that a person is being extradited to a jurisdiction where Irish protections do not apply, it is within the State’s right not to extradite. We have debated extradition over many years and probably know more about it than most other Europeans.

Jurisdiction shopping is already common where well known criminals travel elsewhere in Europe because in an attempt to avoid facing our courts, they consider it will be more difficult for them to be extradited from there to here. That needs to be addressed by approximating - not harmonising - our laws. None of this supersedes Irish law. We will still be entitled to seek the extradition of a person from Spain, Holland or Denmark and likewise, they may seek extradition from this country.

Other aspects may also emerge, especially with regard to the public prosecutor. It is also being considered in terms of protecting European money against fraud.

I apologise, but I must leave as I have a train to catch.

Deputy Haughey took the Chair.

Articles 10 and 11 deal with checks on persons at borders and asylum. Ultimately, we will have to sell this treaty to a sceptical electorate and we are aware of what happened in the past in connection with concerns about immigration, migration and asylum seeking. The Schengen Agreement excludes Britain and Ireland by choice. Has the operation of the agreement in the other applicable countries loosened public security and order in any perceptible way? Has there been a reduction in the operation of security as a result of the elimination of border controls and checks within the Union? If Ireland was to join the agreement, with or without Britain, would that require the introduction of some form of identity card system, which has other merits? I refer to a state of the art identity card system.

On the question of asylum, as set out in Article 11, the demographic profile of the Union is fragile in terms of its ability to renew itself. Many asylum seekers are economic migrants in the main, some of whom are also fleeing political oppression. In the vast majority of cases they are impoverished people to begin with. Would the drafting of "asylum seekers" under this Article have to necessarily be related to the UN convention or is it envisaged that the EU might revisit the whole definition of what is meant by "asylum seeker"? At present, it obliges us to provide economic support for them, which prevents them from being able to work while their applications are being processed. I am really talking about the security aspects of Schengen. Is there any sense of those aspects having generated significant internal destabilisation? What is Deputy John Bruton's view on asylum?

It is quite clear from the explanatory reference to Article 11, on asylum, that there will continue to be full respect for the Geneva Convention and that there is the possibility that the Union might provide further complementary forms of protection not embraced in that convention.

On Schengen, it is probably outside the scope of the report and it is certainly outside the scope of my knowledge to comment authoritatively on whether there is less security in the Schengen area than in the common travel area between Britain and Ireland. My feeling is that the Schengen area is just as secure, if not more secure. It relies more on the sort of information to which the Deputy referred, like identity cards and electronically stored information about people, rather than fixed point scrutiny of people at the border as they come in and out of the area. I am not an expert on this area and I really do not know.

Nobody in Britain has suggested the reason they are not joining Schengen is they feel it is insecure. It is more that, for whatever reason, they just want to have control at Dover, for instance, when people are landing. I think it is a sentimental issue but maybe I am entirely wrong.

In general terms, to what extent is all this merely consolidation or are there new competencies being introduced? It strikes me that since 11 September, in particular, terrorism is very much on the world wide agenda. Would the drive to combat terrorism influence this part of the convention?

It is more than consolidation in the following respects. First, we are bringing the justice and home affairs area in under the main treaty. That means the Commission will have the power, which it does not now have in this area, of requiring countries to take action in accordance with their commitments. At present, countries can leave conventions on this area unratified for years and nobody can do anything about it. By bringing all of this in to the normal legislative process of the Union, the Commission will be able in future to go after countries for non-implementation of a directive on the rights of accused persons to translation of documents in the same way as it can go after us for non-implementation of directives on the environment. That is a huge change in terms of the effectiveness in this area. There has been a pattern in this area of people agreeing to things at meetings and then doing nothing about them, and that will cease.

That is the first major matter beyond consolidation. The second is the introduction of qualified majority voting in the limited areas of certain specified cross-border crimes and in certain aspects of procedure in order to achieve a basis for full and effective mutual recognition.

I suppose there is also the creation of a treaty base for EUROJUST and a treaty base for a possible prosecutor at some time in the future. Those are also matters which would go beyond consolidation.

Mr. McDonagh

I will make a few general comments about the Government's approach and where we stand now on the drafts of these articles we have just received, and in the process I will reply to a few of the points made.

Amendments to the articles we are discussing have to be forwarded to the convention by Wednesday. We got them on Monday of last week. We are currently consulting the relevant Departments, especially the Department of Justice, Equality and Law Reform, with a view to submitting amendments in line with that deadline.

There is likely to be extensive debate on these articles. The last plenary session was relatively straightforward in terms of the subsidiarity and national Parliament protocols, but the debate will be fairly extensive. The Government's overall approach is based on the positive recognition of the overall importance of this area, including the fight against crime and terrorism.

As far as asylum and immigration issues are concerned, the Government has been open to moving to qualified majority voting in that area and regards the provisions that have been brought forward as a very good basis for work.

In reply to Deputy Quinn's question on whether security has been weakened in the Schengen area, I am certainly not aware of that. It is something about which this committee might want to talk to the Department of Justice, Equality and Law Reform, along with some other issues in this area.

What has not weakened is the British commitment to maintaining controls on their external borders. It has been, and I think remains, the view of the Government that the preservation of the common travel area is the priority for us and I am not aware of any likelihood of movement in that area.

As far as qualified majority voting is concerned, the committee will be aware that the Government has expressed concern about this where criminal law is concerned, both in substance and procedure. It has expressed the view that there are strong reasons for caution in moving towards qualified majority voting in this area. At the same time it is recognised that we need to be open to carefully defined treaty changes where this can be shown to be strictly necessary and clearly beneficial.

The distinction between the common law countries and the other countries is not negligible. The report of Deputy John Bruton's group refers to the importance of recognising and respecting the different legal systems. Clearly a key factor in that regard is whether the procedures that are introduced will assure that.

In terms of operational co-operation in police and judicial matters, the Government wants the leading role of member states in that regard to be respected.

As regards the European public prosecutor, the question put by Deputy Andrews, the Government's starting point for the whole convention is that we should identify real problems and find real solutions. There has not been a compelling or convincing case made for the need for a European public prosecutor. There was not consensus either in Deputy John Bruton's group or in the plenary on that, and it is a very sensitive area. That remains the position, that there has not been a compelling and convincing case.

That completes this section. I thank Deputy John Bruton and Mr. McDonagh for participating. I thank Deputy John Bruton, in particular, for his contribution on this aspect of it because I know the central role he played in the Presidium and in the justice working group on this matter.

There are a number of items of correspondence to discuss.

The joint committee went into private session at 12.28 p.m. and resumed in public session at12.29 p.m.

Under any other business, the committee will face a real problem in regard to institutions. The procedure the committee has been adopting of waiting for the convention to produce material and responding to it has worked well, but the one area where all the cards have been held back is institutions. We have had no working group on institutions. We had one brief debate on institutions. Meanwhile, there is a great deal going on. The French and Germans have produced a paper. The Spanish and British have produced another paper, as have the Benelux countries. There is a huge debate going on outside the convention and beyond the oversight of this committee on this.

There is debate on whether each country will have a Commissioner and the relative powers of the Council of Ministers vis-à-vis the Commission, a very important issue to a small country like Ireland. Those are the central issues. It might be useful for the committee to discuss this issue in advance of the convention proposals coming out if possible. It might be useful to have a meeting in closed session where people could speak their minds because we have not formed views on everything. If we had to discuss possible fall-back positions for Ireland in these difficult negotiations the committee might want to do so in private session.

Perhaps the Acting Chair could discuss one issue with the Chairman, which would be helpful to me. There is a really difficult negotiating decision here for the Government - does it hold out on everything until the very last minute, in which case it may be rolled over on issues on which it does not want to be rolled over, or does it try to construct possible fall-back positions that it will be able to hold until the end? I do not know the answer and it is not an easy question. The committee may want to look at this as it will be the most difficult and politically controversial aspect of the referendum but is something we have not even discussed yet in the Presidium.

We appreciate the early warning.

I welcome Deputy John Bruton's comments and share his concerns. This will be to the forefront in the referendum debate. In order to facilitate Deputy John Bruton's suggestion it might be helpful if the secretariat could assemble a paper outlining the various propositions in summary format so we can have an idea of what is proposed, not in an evaluative sense but in a descriptive sense so we can see the array of propositions. I suspect most parties will want this referendum to go through and we need to know what our fall-back position might be. It was a singular point of debate when the report on the Nice treaty was brought back to the Oireachtas.

I find these sessions invaluable. At every meeting I find the information from Deputy John Bruton, Proinsias De Rossa MEP or other members of the convention is vital. I agree with Deputy Quinn on the various position papers on the institutions. Those will be the main bone of contention when we present this for the referendum.

I am not criticising the Chairman, who is not here at the moment, and I have made my views known to the secretariat as this is a very important issue. Since these discussions are so vital and we are getting tons of paperwork and despite reading it, there is nothing like a discussion with those at the convention so we can work out our areas of concern and determine the impact we can have, from my perspective 11 a.m. on Monday morning does not suit, as we can see from the attendance. I know we are facilitating Deputy John Bruton but is there any way we might consider a meeting even on a non-sitting day that would ensure a full attendance at this important forum? That is not criticism and I know members of the Presidium have to be facilitated.

Monday is far and away the easiest day for members of the Convention to attend. There are either plenary convention meetings or Presidium meetings from Tuesday to Friday so those days tend to be blocked out. It is probably unfortunate that Deputy Sexton will have to live with Mondays.

I do not mind because I can make it but it is unfortunate to have a small group when the issues under discussion are of such importance.

We will be conscious of that in trying to find the occasional other date. We will also take on board Deputy Quinn's suggestion of a paper and I will discuss a meeting on the institutions issue with the Chairman.

The chair might also discuss the possibility of a closed meeting. I imagine people would not want this to be discussed as frankly as it should in the presence of diplomats from other countries or the media.

Regarding security and justice, perhaps we should alert the Oireachtas committee dealing with those areas that these articles have been published. It might want to note their publication.

Regarding the absence of the media, these matters are quite sensitive until they are on paper. Deputy John Bruton is correct in that they may be easier to discuss in committee.

When contacting the Joint Committee on Justice, Equality, Defence and Women's Rights the chair can tell it I will be happy to appear before it if necessary.

The joint committee adjourned at 12.37 p.m.
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