JOINT COMMITTEE ON EUROPEAN AFFAIRS debate -
Wednesday, 9 Feb 2005

Ratification of EU Constitutional Treaty: Presentation.

Vice-Chairman (Deputy Andrews)

Today we are discussing the ratification of the constitutional treaty. We will have a presentation from Mr. Alan Dukes who is well known to members. We also welcome Ms Jill Donohue, the research director of the Institute of European Affairs.

I must make the usual comments about parliamentary privilege. I draw witnesses' attention to the fact that while members of this committee have absolute privilege, the same privilege does not extend to them. Members are reminded of the parliamentary practice to the effect that members should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable.

Mr. Dukes will give an outline of the current status of ratification of the constitutional treaty in the member states and the institute's plans for dealing with it in Ireland in the coming months. Members should also have been circulated with the institute's work programme for the period to June 2005. We can deal with all those questions once Mr. Dukes has made his presentation.

Mr. Alan Dukes

Perhaps I might give a brief outline of where we stand regarding ratification, a series of seminars that we are running in the institute bringing in representatives of member states to discuss their views on it, and an overview of what the institute proposes to do from now on. I preface my remarks by saying that our mission in the institute is to think as deeply as we can on such issues, analyse what is going on and make that information available to anyone who feels that it might be useful. We would always be delighted to hear from the committee or individual members on any aspect of our work.

So far, three states have ratified the treaty. The first was Lithuania, followed by Hungary and Slovenia. It is significant that the first three states to ratify the treaty are new members and that the very first to do so was one of the smaller ones. As it happens, we had the Lithuanian Foreign Minister among the speakers at our seminar last Friday. He was joined by the Deputy Prime Minister of the Slovak Republic, Mr. Pál Csáky, and Mr. Vladimir Müller who is Deputy Minister for Foreign Affairs of the Czech Republic. Our own Minister of State at the Department of Foreign Affairs, Deputy Noel Treacy, was also there. He made it clear that he wishes to participate in all our seminars. That kind of participation we find very valuable.

I will give a brief résumé of the main points made by the speakers at that seminar. The Deputy Prime Minister of Slovakia made the point that the constitutional treaty was a natural, important and logical next step in building Europe. In particular, he insisted that the treaty was not the foundation of any kind of European super state. On the contrary, it seemed to him that the treaty allowed respect for and development of the multicultural heritage of individual member states. He pointed out that there is concern in the new member states that they be regarded as equal partners in the enlarged European Union. He particularly stressed the fact that the history of his own state and that of the other new member states, apart from Malta and Cyprus, under communism did not in any way detract from their European identity. Each of the three speakers made the point, frequently overlooked here, that all those new member states have a substantial history, both political and cultural, and have a great deal to offer such discourse in the enlarged European Union. The Deputy Prime Minister's country has endured a totalitarian regime, and for him the European Union constitutes a unique and different route.

The Deputy Prime Minister believes that the institutional changes in the constitutional treaty are vital to allow the enlarged Union to function satisfactorily. Echoing a view that we have taken ourselves in the institute, he made the point that the constitutional treaty as it now stands, adapted to deal with the governmental needs of 27 member states, including the current applicant states, Bulgaria and Romania, can probably also deal with Croatia. There is further work to be done in the Balkans, and Turkey is a candidate. If we reach the point where all those countries have resolved the issues concerned, I believe it will be necessary to re-examine the treaty. However, it is essential to point out now that the issue is one for a future date rather than today. This current constitutional treaty does not attempt to deal with that.

The Foreign Minister of Lithuania, Mr. Valionis, made the point that in his country the treaty debate overlapped with the negotiations for accession. In Lithuania the two were seen to be very much inseparable. That was one of the reasons they proceeded so quickly to ratification. He is proud of the fact, quite rightly, that Lithuania is the first state to have ratified the treaty. In his view both accession to the Union and the constitutional treaty consolidate democracy and sovereignty while putting them into a broader European context. He used one phrase which a number of people at the seminar found quite striking. He regarded the EU as a valuable Union "that can accommodate the big member states and protect the small member states". He laid some emphasis on what he regarded as the importance of the fact that the constitutional treaty facilitates a greater consolidation of the European Union's action in the sphere of foreign policy, where he said "we have little to lose and much to gain". He pointed out in particular that the European Union had been in a position to play a substantial role recently in Ukraine. He also looked forward to the provision in the constitution for teamed Presidencies which will see Lithuania partnering Greece and Ireland in the Presidency of the Union from 1 January 2013 to the end of June 2014, assuming these changes come into effect.

The Czech Deputy Minister for Foreign Affairs again made the point that this constitutional treaty, in his view, puts the seal on the work done in the new member states to put the political and economic realities of the past behind them and to participate in a new remade European Union. Opinion in the Czech Republic is divided on this issue. There were some familiar echoes in what he had to say. There are those who believe that sovereignty shared is sovereignty surrendered. On the other hand, there are others who believe that sovereignty shared is sovereignty gained within the European Union. The template the Czech Government is using to assess this treaty really has to do with the question of whether it delivers a stable legal space for a dynamic but predictable development of the Union. The Czech consensus is that it does. The government takes the view that participation in the Union for citizens of the Czech Republic is a means of extending rather than limiting their rights and that the sharing of sovereignty extends their rights. That is a brief overview of the presentations at that seminar.

We were addressed by the Minister of State at the Department of Foreign Affairs, Deputy Treacy. I will not take the liberty of paraphrasing his views here which are well known to the committee. The next seminar will take place on 2 March. We will have the Spanish Minister for European Affairs and it will be interesting to hear what he has to say because Spain will hold its referendum on the treaty on 20 February. We will have the Spanish Minister for European Affairs hot from the hustings, so to speak. He will be joined by the Maltese Foreign Minister, Dr. Michael Frendo, the Greek Minister of State for European Affairs and our own Minister of State, Deputy Treacy.

We plan to complete that series of seminars by the middle of the year, by which time we will have had the opportunity to get an overview from all the member states as to where they stand as regards the treaty. As the committee knows, we published an analysis of the treaty last October. It was presented to the committee some time ago by Dr. Garret FitzGerald. We are now preparing a series of eight shorter publications dealing with particular parts of the treaty. One of them will deal with institutional relations. That will focus on changes in the voting arrangements, Council configurations, the role of the Presidency, including the Presidency of the European Council, the Commission, and the EU Minister for Foreign Affairs and Enhanced Co-operation.

Another one will deal with the issue of the primacy of EU law and will be looking at the significance of that in the constitution as well as issues of sovereignty and transfer of competence and will examine the question of whether the constitutional treaty alters the status quo in any way. Another will deal with the Charter of Fundamental Rights, examining its significance and that of its horizontal clauses as well as issues that may arise in the context of whatever instrument is decided on as appropriate for the European Union to accede or participate in the European Convention on Human Rights.

Another one will deal with issues of freedom, security and justice, asylum and immigration, personal data protection and information sharing, mutual recognition in criminal procedures and all the issues surrounding them. On the external relations side, particularly in regard to the new EU neighbourhood, the issues as regards freedom, security and justice are examined. A further one will deal with issues of security and defence in the treaty, how they are dealt with and the structures that have been put in place. We will have a publication on social Europe, examining social provisions in this treaty arising as regards public services, globalisation, privatisation and all those issues. There will be a publication on national parliaments and the democratic life of the Union, issues of parliamentary legitimacy, and the involvement of national parliaments in the work of the Union both in terms of what is provided in the treaty and what national parliaments decide or do not decide to do in their sovereign judgments as regards their involvement in the preparation of European legislation.

These will be short pamphlets in a clear bullet-type style. They will be useful for people who are interested as a guide to what is in the treaty. I would like to take a moment to give the committee a brief view of our analysis of the treaty. I believe there are a couple of matters which are important to bear in mind during the debate, not least that there is no comparator for the European Union anywhere in the world. From the viewpoint of political analysis, that in fact means that any new step the European Union takes is a new adventure. Each step is prepared as carefully as possible in advance. However, each step will ultimately contain some unknown dimension. So far we do not seem to have done anything dreadfully wrong. Matters seem to have worked out quite well. However, it is important to bear in mind in the debate that there is not another body like the EU to which it may be compared. That means comparisons made with other systems are of very limited value. We need to employ empirical political judgments in looking at these issues more than anything else.

It seems to us there are two fundamental questions to be answered when we look at this treaty. The first is whether the European Union with 27 member states will be better governed with this constitutional treaty than it would be if we were to continue with the Treaty of Nice. It was certainly the intention of the Convention and the Intergovernmental Council to bring about that result. Our view is that this is the case and that EU 27 would be better governed by this constitutional treaty than they would be with the Nice treaty. Another important fundamental question is whether governance of the EU within this constitutional treaty will be more open to democratic influences than it would be under the Nice treaty. Again, it seems to us having examined the provisions of this treaty that the answer to that is yes.

There is a rider to that answer, which is that the openness of the system of governance in the EU to democratic influences depends far more on the activity of democratic actors than it does on the institutions of the EU. It seems that there is an open door, but very few democratic institutions in the EU ever bother to look to see whether that door is open. Perhaps that is an issue for another day. From our analysis of the treaty, it will deal with the governance of a 27 member state European Union and it could probably deal with an EU that includes Croatia. After that, there are imponderables about Serbia and Montenegro, Macedonia and Kosovo, about which we cannot predict. We will be opening negotiations with Turkey during the course of the next year. If all those negotiations come to a fruitful conclusion, it seems inevitable that we would revisit the treaty. All that is quite some distance away and it should not influence the way that we deal with this particular treaty.

The provisions of the treaty on the Presidency of the European Council need to be examined. There will now be a two and a half year Presidency which is renewable for another term, in order that a European Council Presidency with an effective mandate of five years is a possibility. The European Parliament makes its own decisions on how it organises the Presidency, but it seems to have got into the habit of splitting the Presidency into two terms. The European Commission Presidency has a mandate of five years. All this means that the Presidency of the European Council will gain in influence vis-à-vis the other two Presidencies.

The EU Minister for Foreign Affairs is a new institutional development in this treaty. We will have a person who is a Vice-President of the Commission who will bring proposals from the Commission as a college as well as proposals from the Commission acting as a wise body to the Council of Ministers. Where these are matters within the Commission's competence, that person who is bringing the proposals to the Council will also chair the Council and will therefore have to mediate the debate. That person will find herself or himself in the position of reporting back to the Council on what has been done to give effect to decisions in the Council. That person will be pretty busy, but will also have a position of some considerable influence because that person will also be there for five years. That combination of functions is an innovation in the political systems of all our member states and is one that will be an interesting exercise to watch, assuming that the treaty is ratified.

That is a very broad overview of where we seem to be at the moment. In the Institute of European Affairs, we are always ready to participate in debate and examination. Members of this committee are more than welcome to attend our next seminar on the constitutional treaty on 2 March. We are the first institute in the European Union to organise a seminar on the proposed external action service. That service was proposed at this committee and we believe it is quite an innovation in foreign policy activity. That will take place on 17 February at 9.30 a.m. at the Institute of European Affairs. We will be happy to see any or all of the committee members there.

Vice-Chairman

I thank Mr. Dukes for his presentation. The Chairman, Deputy Deasy, has a particular interest in the area of external action. I will pass the invitation on to him as well as other members.

Deputy Quinn

I acknowledge that this is the largest attendance at the Joint Committee on European Affairs for some time. I welcome my colleagues who are semi-detached from the Oireachtas, especially my constituency colleague, Deputy Eoin Ryan. That there are six MEPs out of the 13 who could be here is a fair indication of the interest that they retain. I welcome the work that has been done by the institute and its publication. I also welcome the announcement that it proposes to address a series of issues of particular concern. It listed about eight issues in all. I wish to comment on two, about which I have been hearing on the doorstep and about which colleagues have expressed concerns.

We have had treaties in the past, but this is the first constitutional treaty and there are fears about that. Any Irish citizen can initiate an action that would challenge the legitimacy of particular legislation and vindicate his or her rights through the Irish Constitution, certainly since Cearbhall Ó Dálaigh was Chief Justice. This has made the Irish Constitution a much more relevant instrument of human rights and citizen's rights than many other constitutions in other European countries. Some of my continental friends are amazed at the idea that an individual citizen can initiate an action. I would like Mr. Dukes to address the suggestion that if we vote in favour of this constitutional treaty, the Irish Constitution will be made subservient. There are those who say that if we vote in favour of this treaty, then Irish law will be secondary to European law. All this is a fear on the negative side.

On the positive side, is the rebalancing between the role of national parliaments and that of the institutions of the EU, which are the Commission, the Council and the Parliament? For the first time, national parliaments have been given a yellow card to use on the institutions. If enough national parliamentarians felt that an issue such as education was something they could do better at national level, then they could collectively put up the yellow card and stop that initiative dead in its tracks. Will Mr. Dukes explain how he envisages that mechanism working? What is the tick-tacking arrangement? We know how to talk to ourselves, but how do we talk to Malta or Cyprus? If a proposal starts to surface, how does Mr. Dukes see the organic nature of the institutions being utilised to explore this expression of sovereignty? We are into uncharted waters. We are inventing new institutions. We cannot look over our shoulders and say this is how they do it somewhere else because there is no somewhere else. We are inventing this process as we go along. This committee will get the communication in the first instance. If we suddenly feel this is offside, how do we communicate, for example, with the Maltese European affairs committee? The timeframe is relatively short. Mr. Dukes might think aloud in this regard on the two issues — the constitutional treaty and its emotional and legal relationship with Bunreacht na hÉireann and the operation of the new, what I call for shorthand, yellow card mechanism in national parliaments.

Mr. Dukes

They are interesting issues. As Deputy Quinn asked me to think aloud about them, I will, but I do not pretend to have definitive responses. On the relationship between the constitutional treaty and Bunreacht na hÉireann, it is worth reminding ourselves that there is a substantial history and comment from the European Court of Justice to the effect that past European treaties, from the Treaty of Rome to the Treaty of Nice, have all had the character of a constitution, that is, they were the basic organic law of the entity, whether the European Economic Community, the European Community or the European Union. It is important, however, to point out that the European Union treaties or constitution — whatever we call them — have powers and competencies only to the extent that this has been agreed by the member states and to the extent they have agreed by treaty to cede those powers to the European Union. Therefore, at any time, although it may occasionally require a court decision to define it, there is a limit to the powers that can be exercised by the European Union, and that limit has always been agreed by all the member states that have ratified whichever treaty is in force.

The issue of the primacy of European Union law over national law is not new. The first question put to the Irish people in a referendum on our involvement in the European Community centred on getting agreement from the people, which they gave, to hand over such powers as were necessary to implement the treaty in front of them, not more or less. As I am a simple economist, not a lawyer, my words may not be exact but, to paraphrase, since that time there has been a compact between the Union and the member states, occasionally defined by the court in the same way our Supreme Court tells us in the final analysis what the Constitution means, as to where the powers of the member states stop and the powers of the European Union begin. Fundamentally, there is no change in that position to the extent that this treaty has any effect on the constitutions of this or any other member state. It is defined in the treaty and is a knowable quantity. This treaty creates virtually no new competencies for the European Union.

Calling it a constitutional treaty is something that seemed to be important in the first instance to those who participated in the work of the Convention. While there is a far greater expert on the work of the Convention present, my impression is that they felt it was important to call it a constitutional treaty to make it clear that this is the basic organic law of the expanded European Union. It was not in any sense to elevate it over or impinge on national constitutions but simply to say that, when we talk about the European Union, this is what sets out the law and the limits of the competence of the Union. I hope this thinking out loud has been at least relevant.

On the other issue, what Deputy Quinn called the yellow card provision in the national parliaments, it seems an important provision to members of the institute. As Deputy Quinn has invited me to think out loud on it, my view is that there is a dimension to this about which we have not really thought yet in that national parliaments can object to a measure proposed by the Commission before it goes into the decision-making procedure of the Union if they believe that measure is excessive, inappropriate or goes beyond what they understand the treaty to mean. If this is the case, they can mark their disagreement.

COSAC, of which this committee is part, is the group of the European affairs committees of the parliaments of member states. It has been in existence for some time and seems to be one of the first channels. However, we need to take account of Deputy Quinn's point that time is of the essence. Perhaps a less relaxed way of doing business than normal in COSAC might be appropriate in this regard.

The other element I think important is as follows. In most of our national parliaments in the 25 member states — I hope it will soon be 27 — the government has a majority. Therefore, the parliament will have to get some kind of assent, tacit or explicit, from the government as to the view it takes. However, this also suggests that the governments will find they have another channel to use if matters look difficult. By the time a proposal is formally put, governments will have been involved in the committee work and consultation that goes into the making of a proposal and will have a fair idea of its extent and what its effects will be. If any government is of the view that it has not succeeded in getting agreement on the points it wanted to agree in that process, it has another option when the matter comes to the national parliament. That seems to be a gain in the openness of the system.

I have believed for some time, even as an Oireachtas Member, that if there is a democratic deficit in the European Union, it is alive and well and living in national parliaments. Very few of the national parliaments of the EU — I would not include the Oireachtas among the stars — have really exerted themselves in regard to European Union legislation. In the hierarchy, the Danish Parliament is the most active in that regard followed in order by the Dutch Parliament and the UK Parliament, although in the UK the House of Lords does the business. Other national parliaments have, on the whole, tended to take a relaxed or detached view of the process. Nothing in the current treaties or in the constitutions of any of the national parliaments requires matters to be so. There is nothing to prevent any national parliament from taking a more active or muscular approach to the development of Union legislation.

I make this observation as a former Member of this House and former lobbyist, and having worked in the Commission. It has been my experience that it is much easier to find out what is being planned or cooked up in the Commission in Brussels than it is to find out similar things about most Departments in Dublin for as long as they are here. It might be even more difficult to find out what they are planning if they are moved to Killarney or places like that.

There is a new opportunity in this treaty for both parliaments and governments to act. It can also be taken as an incitation to member state parliaments to do something that was open to them up to now but which they largely, for reasons best known to themselves, failed to do. At the end of April we will be organising, in conjunction with the law faculty in UCD, a seminar on the role of national parliaments in the member states in regard to legislation. This seminar will involve participation by representatives of other member states.

Deputy Mulcahy

I am delighted Mr. Dukes is here today. It is important that we have a body examining all these issues in a critical way. I am particularly pleased about the last point in the discussion as it is one under consideration at COSAC, which comprises committees of parliaments of the EU. At the last meeting of this body in The Hague, there was a detailed discussion of this issue in the projected context of a treaty that is ratified by all member states and implemented. France proposed some type of experiment in this regard.

Those of us who are members of the Oireachtas Sub-Committee on European Scrutiny receive all the documentation and have always wondered about the modalities of sharing our doubts and thoughts with other EU committees of the national parliaments. This would not be easy as it involves different languages and time zones. The Institute of European Affairs might work with the committee to formulate our ideas in terms of sharing information with other European affairs committees. I have suggested on previous occasions some form of regular audio-visual link-up. Committees in all member states should receive particular Commission proposals at the same time and hold discussions about them within the same timeframe.

We are only at the beginning of this process. I particularly welcome the yellow flag proposal in the treaty, even though some have claimed it is somewhat weak and does not amount to a right of veto. However, it does provide for a strong right of consultation and input, which is incredibly important in a context in which the EU seems to be doing too much and to be unaware of its core competencies. A dog stops eating once it has a good meal but the EU seems to go on, trundling out regulations at an enormous rate. People are concerned about the legislative proposal to ban natural medicines, for example.

Proinsias De Rossa, MEP

It is not proposed to ban them but to regulate them.

Deputy Mulcahy

We now have markings on eggs, although there was never a demand for such.

Proinsias De Rossa, MEP

There have been markings on eggs for years.

Deputy Mulcahy

It is important that the EU should adopt an attitude of less is more and focus on its main areas of activity, including economic development, the environment and social rights. It should not stray too far from these core competencies. I welcome the discussion on subsidiarity, an issue to which we must give serious consideration.

Mr. Dukes will be aware from his time as a politician that we must sell these issues to citizens. The Treaty of Nice, although not initially accepted, had a clear and understandable selling point in terms of the requirements for enlargement. What are the points Mr. Dukes would make on the doorsteps in Ballyfermot, Cork or Kerry to convince voters of the merits and importance of the treaty and to secure their support?

Mr. Dukes

I am tempted to suggest what might relate to Deputy Mulcahy's objection to the rush to regulate. I agree this is a problem. It has been done in regard to cigarettes, and crisps and burgers are apparently next on the agenda. However, we should remember that these issues are not necessarily all born deep in the bowels of the Berlaymont in Brussels. Many of these ideas begin in national capitals. I hope the news does not get to Brussels about some of the proposals currently under discussion in the regulatory framework in Ireland. I do not like to give those in Brussels bad thoughts.

I remember as a small boy that eggs were date-marked. The phrase was that one should go to work on an egg. There was an old and rather rude joke about the lady from the British egg board who woke up one morning and found that somebody was going to work on her.

Senator Lydon

Happiness is egg-shaped.

Mr. Dukes

Eggs have had many uses, as Galileo once discovered.

The yellow card proposal will provide a valuable instrument for facilitating objections to excessive regulation, whatever its source. As I said, the inspiration for excessive regulation comes from within member states. Some genius in the US Department of Transport decided some time ago that airlines in that country should be obliged to keep a certain number of peanut-free seat rows in order to prevent any incidents of anaphylactic shock. The issue underwent public consultation and the regulators found to their amazement that the airlines, which did not want to accept such a regulation, had cleverly decided to simply stop serving peanuts. This is the simple way to do things. It is very much up to COSAC to devise a process in this regard, for which all the means are in place. Conference calling would seem to be a quick method for getting the scrutiny committees to identify areas of concern.

In terms of slogans for the campaign, I have never been accused of being good at sloganeering on doorsteps. The reason we need this treaty is to ensure the good governance of an enlarged EU. The Treaty of Nice was necessary to allow enlargement to take place and the constitutional treaty is necessary to provide for governance of 27 member states. If a tag is required, one could say it is a "good governance treaty, made in Ireland". That it was agreed during the Irish Presidency is an attraction.

Deputy Mulcahy

However, such a slogan is unlikely to excite voters.

Mr. Dukes

That is true. However, Deputy Mulcahy is gilding the lily somewhat in his suggestion that the argument that ratification of the Treaty of Nice was necessary for enlargement was what won the day in the second referendum on that question. Any slogan invented for this referendum campaign would necessarily be either incomplete or misleading. What really made the difference in the second referendum on the Treaty of Nice was that voters got the clear impression that people in the political system knew what it was about and cared enough about it to communicate that knowledge. It will be the same on this occasion.

Chairman

I propose to take a number of questions together from Proinsias De Rossa, MEP; Deputy Marian Harkin, MEP, and Ms Mary Lou McDonald, MEP, respectively.

Proinsias De Rossa, MEP

I welcome Mr. Dukes to the committee and congratulate the Institute of European Affairs on its document which is one of the best I have seen anywhere in Europe. It is laid out in a very simple way and annotated in a manner which makes it easy to locate issues in which one might be interested. Its presentation enables one to deal with the issues in a reasonably non-technical way.

Regarding ratification, it would be helpful if we knew quite soon when the referendum would be held. That would at least give people an opportunity to start planning, whether for or against the constitution. Every household should receive a copy. This point may have been made before but it is worth repeating. It is not reasonable to expect the public to vote on the constitution without having had sight of it or being able to refer to their own copy. When they see me and Ms McDonald arguing about this, that or the other on television or radio, they should be able to check which of us is interpreting or quoting an issue in the correct or incorrect way. It is extremely important they receive a copy, have it at home and are able to look through it. They can decide not to read it if they wish but at least they should have the opportunity to do so. It should also be available on CD and in libraries.

This committee and others should examine the various aspects of the constitution and see what implications it has for their work. In particular, the constitutional review committee should look at it and see what implications, if any, it has for the Constitution. I take Mr. Dukes's points about this issue. That has been my view all along.

The yellow card is an important innovation. However, it will not be greatly used because the Commission will be extremely careful to ensure it does not build up a head of steam in order that 30% of member states rise up against what is proposed. Parliaments have the right of direct contact with the Commission to state it has over-stepped the mark and should take this into account. We should also keep in mind the influence we have with our national governments in terms of the role they play at Council, as well as MEPs in the European Parliament and their interaction with the Commission. The network of interactions with regard to the application of the principle of subsidiarity in a political way is important.

More important is the fact that the constitution clearly lays out the legal requirement for the Commission to have regard to the principle of subsidiarity. The European Parliament and Council will also be legally obliged to have regard to its application. It is not just a question of whether we can muster 30% of European parliaments on some issue or other but whether we have the capacity to look at issues which come before us in the national parliament to ensure the Commission, the Council and the European Parliament are complying with the principles as laid out in a protocol to the constitution which will be legally binding. It would be a pity to miss sight of that requirement in concentrating on the yellow card.

On the extension of powers, no new powers have been given to the institutions of the European Union which still has four powers. I do not know whether Mr. Dukes can enumerate the four areas where it has exclusive competence. I may stand corrected but there has been a slight extension in terms of how environmental issues are dealt with regarding the movement from co-operative to shared competence. That is the only area where there has been any extension.

The constitution will begin to take effect at the end of 2006. One of the measures national parliaments should take, including our own, is to consider what implications it has in terms of how they carry out their business. The most immediate question is that of subsidiarity but also how they look at the volume of documents they would be entitled to receive in advance of their going to the Council or Commission. It might be worthwhile to have an expert group look at the implications for the Oireachtas of various elements of the constitution if and when it comes into effect. Perhaps the Institute of European Affairs could do this.

With regard to the issue of the yellow card, one of the political questions, as touched on by Mr. Dukes, is what role governments will play. If there is serious concern in this Parliament about some aspect of a particular law, will the Government of the day enable the Oireachtas to express these concerns or will it be blocked? A protocol or an institutional agreement with the Government is needed in order for the Oireachtas to have a free hand to express its view.

Deputy Harkin

As many people will want to comment and ask questions, I will be brief. I am sorry I missed the beginning of Mr. Dukes's presentation. I was somewhere else at the time.

I agree with Proinsias De Rossa that a copy of the treaty should be available to every household if it requests it or indicates it would like to receive one. Whether people read it, refer to it once or twice or bring it to bed with them every night, it should be available. They have an attachment to Bunreacht na hÉireann. We all do. We are in a position to vote on something which will change this to some extent. For that reason, information should be available. However, that is not enough.

I have not read Mr. Dukes's document. It has been praised this afternoon and I look forward to receiving a copy. One of my suggestions is that there might be a simplified document whereby it would be explained what was in place and what would be changed by the new draft treaty. In this way the changes made will be clear. We can talk all we like about subsidiarity and yellow cards but these terms mean nothing to the people who will vote and eventually make the decision. They need to know about the effects on their daily lives. One year ago Mr. Pat Cox made a speech in which he listed ten ways the European Union affected people in their daily lives. That is the information in which people will be interested.

For those of us who support ratification, including me, one of the difficulties is that we will always be on the defensive. It is easy to raise doubts in people's minds. There will always be a "what if?" or "under the circumstances, could it or might it be?" If we are not careful, we always will be on the back foot.

As to the information to be distributed, I suggest that we look for good reasons to vote "Yes". It is also important to be realistic. We should not gild the lily or pretend that this treaty is the answer to all our prayers. During the Nice treaty campaign, one side stated it was the very best possible scenario while the other stated the opposite. The truth was somewhere in the middle. People are willing to listen to a reasonable argument.

Mr. Dukes stated, "this treaty creates virtually no new competences for the European Union.'' Will he be more specific?

For once, I agree with Deputy Mulcahy about the sense, if not the actuality, of over-regulation by the European Union which should keep its focus on its core competences. In this context, someone mentioned the yellow card. However, that mechanism really only kicks in when we talk about subsidiarity — if an issue should be decided at national rather than EU level — it may not cover this area. Members of the European Parliament also have a function in examining the issue of over-regulation.

Ms McDonald, MEP

I thank Mr. Dukes for a very interesting presentation. I agree with those who have stated the maximum amount of information should be made available to the public up to and including a copy of the treaty and the protocols. However, in reality, despite the ambitions expressed in the Laaken Declaration, the treaty has not been simplified to the extent that it is readily accessible to the average reader. In the light of this and in the spirit of making information fully available, the role of the Referendum Commission should be to set out differing perspectives of the constitutional treaty, its worthiness or otherwise, and its implications.

Mr. Dukes spoke about the merits of the constitutional treaty on the basis of good governance and democratic accountability and influence. I ask him to think aloud again and address these two issues from the perspective of the citizen. As we all appreciate, good governance is not just about institutional efficiency or inter-institutional relationships. Crucially, it is about the relationship between the citizen and the democratic infrastructure and institutions. I would also like to hear from Mr. Dukes concerning foreign, security and defence policy and the position of Irish neutrality as he sees it.

Deputy Coveney

Every household should receive a copy of the constitution and a simplified document, with the ten obvious questions answered in a balanced way. For example, it could include a question like: "Is this a threat to Irish neutrality?" for those concerned about the issue. Similarly, I have already heard people ask if this will result in abortion services being available in Ireland. Questions like this which may seem absurd to us but are discussed in the pub need to be answered.

The information provided should use simple language indicating the consequences of voting for or against the treaty and, in particular, that a vote against would mean a falling back on the Nice treaty. There seems to be an assumption that if one votes against the treaty and it is rejected, there will be an improved situation whereby no treaty will apply. That is not the case. It also needs to address key Irish concerns such as taxation.

Perhaps Mr. Dukes will comment on the treaty's impact on Ireland's ability to decide on taxation matters. Will he also comment on the role of the European Foreign Minister? He has already commented on the issue briefly but can he comment on the Minister's precise role and on the areas on which he can and cannot speak for Irish and other European citizens? I use the word "he" because the Minister happens to be Javier Solana. On certain issues, people will feel uncomfortable with one person speaking on behalf of 25 or 27 member states while on others, more co-ordination will be needed. I ask Mr. Dukes to provide more detail on European thinking as to what exactly the Minister's role will be.

Vice-Chairman

While I agree with Deputy Harkin's view that the constitution in its full form should be available to everybody, it should not necessarily be sent to everyone unrequested. It is 400 pages long and very complicated. In itself, such an exercise could cause a negative reaction. Some basic documentation must be sent to everybody but not necessarily the document itself, other than on request.

I ask Mr. Dukes to touch on the consequences of failure of the ratification process, both here and in other countries, as this would have an impact on people's thinking as they approach the referendum.

Mr. Dukes

While I would dearly love to debate the issues of European security, defence and foreign policy with Ms McDonald, we would need a couple of days, which is not to avoid the issue in any way. I will touch on it briefly. Personally — I am sure I also speak for the institute — I am in favour of making the maximum amount of information available to everybody. Forgive me if I sound flippant but if we were to deliver a copy of the constitutional treaty to every household — I can see enormous advantages in doing so — it would be far more widely available than Bunreacht na hÉireann. I have been amused for the past 30 years or so at how exercised people become about knowing what is or is not contained in the various treaties, most of whom have never held a copy of Bunreacht na hÉireann in their hands.

I am also somewhat jaundiced when I hear comments about the alleged opacity of documents or their inaccessibility to the ordinary reading public. I have been through several treaties many times. I have also been through Bunreacht na hÉireann many times and find it hard to decide which is the more pellucid and the more opaque. I hope it does not insult anyone present to state every constitution I have read has one thing in common. They were all written by people who were so careful about what they were writing that the language was in a grossly tortured form. Apart from the constitution of the United States of America, I have never read a constitutional document that is clear. Even if one looks at the US constitution, one will find successive amendments to it have become more and more complicated. While I am in favour of making the maximum amount of information available, we should not expect the impossible of a constitutional document which has, after all, to be a legal text. For good or ill, we have decided, both in Bunreacht na hÉireann and the treaties of the European Union, that the final arbiter is a court, in our case, the Supreme Court and, in the case of the treaties, the European Court of Justice.

I do not know what decisions will be made about the Referendum Commission but hope it will be possible to produce clear information that will be of value and assistance to people in making up their minds. When one moves past expressing that simple hope, one gets into a highly contentious area. On one occasion — I made no secret of this at the time — the documentation produced by the commission clearly confused more people than it illuminated. The lesson that has been learned from that occurrence is how not to do it. We have not yet come to any firm conclusions about how to do it. On issues such as this it is extremely difficult as one person's notion of fairness is another's notion of bias. It is very difficult to be absolutely sure that what is presented is objective and fair to all points of view.

To the best of my knowledge, conviction and belief, the treaty does not confer any new competences on the European Union. There is no action that it could take that it cannot already take under the Nice treaty. There are mechanisms in place relating to decision-making in the Council, the Common Foreign and Security Policy and issues such as defence co-operation that make the process simpler and should help it. These mechanisms will make the process more transparent.

The areas of exclusive competence which we have listed in the analysis published by us, on pages 33 and 34, are customs union, competition rules necessary for the functioning of the internal market, monetary policy for members of the eurozone, trade agreements with other countries, the conservation of marine biological resources under the Common Fisheries Policy and international agreements. There is a longer list of shared competences in section 3.5 of the document while there is an outline of the areas of supporting, co-ordinating and complementary action in section 3.6.

I will return to the issue of information raised by Deputy Harkin. She argued that one should not gild the lily when one is presenting information, a sentiment with which I agree entirely.

On the issue of over-regulation, happily we can choose whether to agree to legislation. Much of the argument about over-regulation, be it in the European Union or any other framework, is selective. It always struck me while I was a Member of this House that those who complained about over-regulation had specific issues in mind. These same individuals are quite capable of calling for new regulations in areas where they believe public policy is lacking. It is a question of balance and proportionality. We should always bear in mind that one of the legal obligations of the European Union is that its action should always be proportionate. This applies independently of the principle of subsidiarity.

Regarding Ms McDonald's question, viewing governance and accountability from the citizen's point of view is at the root of a debate about a new constitutional treaty for the European Union. Governance is an issue only because the citizen is important. If we did not have regard to the rights and privileges of the citizen, we would not worry about governance which is to ensure the system meets the needs for which it was built. In democratic systems there is governance to ensure citizens are properly served. Although it seems remote to the ordinary punter on the street, governance is the central issue of democratic government. It needs to concentrate on two issues, the first of which is accountability, that is, it should be open and accessible and that people should have to answer for how they exercise governance. The second is that it should be transparent. People should have as many opportunities as possible to see how it happens.

The institutional measures proposed in the treaty that relate to the Presidencies of the Council, the Parliament and the Commission; the EU Foreign Minister and the extension of qualified majority voting were debated by the Convention and the IGC very much in the mindset that the intention was to make the system work more effectively because it does become more difficult when one moves from 15 to 25 member states. Soon there will be 27. It is necessary, therefore, to provide for a more streamlined system of decision-making, if it can be done. Efficiency, therefore, has very much been at the root of the process.

Accountability is built into the system. The Commission has a duty under the treaty in that it has to be open and is invigilated every year by the Court of Auditors from the financial point of view. The Council is accountable to the governments of the member states and the European Parliament. The Commission is accountable to both the Council and the Parliament. All this looks fine in theory and seems very remote from the citizen but we have to look at the vehicles and channels for conveying information to the citizen. These channels are the Members of the European Parliament, the members of the Council of Ministers and the European Council — the Heads of State and Government — and members of national parliaments who have a duty to ensure accountability because the European Union is a union of member states. The EU treaty is concluded by member states, not by individuals in each member state.

The process of accountability must work through the parties to the agreement. It always seems to me that arguments about the accountability of the European Union miss the point because they concentrate on how the citizen perceives what happens in the Union. This is because the obligation to provide for accountability lies with the parties to the treaties — the member states in their various manifestations, including the European Parliament, its Members and governments. There is no other way of making the Union accountable. I am not for one moment trying to minimise the difficulties involved in making it accountable.

It is extremely difficult even for members of local authorities to ensure accountability to the audience watching them since not everyone is looking at what they do. Full accountability is like mortal sin; it requires full knowledge and full consent. If there is one without the other, it is not a mortal sin. If there is one without the other in the terms we are discussing, there is not full accountability. The communicators cannot be blamed, however, if those to whom they try to communicate the information are not listening. Often they are not. I do not think we should saddle the European Union with a greater duty of accountability than that with which we saddle member states or local authorities.

On specific issues, what happens if this treaty is not ratified? Legally and constitutionally nothing changes compared to today. We continue with the Nice treaty but without what seem to be operational advantages owing to the institutional changes being made in the proposed constitution. The fundamental question we must ask is, will a European Union of 27 member states be better governed under this treaty than under the Nice treaty? It seems to me it will. If we do not ratify this treaty, we are operationally hobbling a 27-state European Union.

Theoretically, a certain number of member states must fail to ratify the treaty before this goes to the European Council, but in practical terms if any member state fails in this, the European Council must re-examine the issue and decide what, if anything, to do next. It is conceivable the Council could decide to continue operating with the Nice treaty and see how events fare but I cannot predict its decision. If that were the decision, we would soon run into substantial difficulty in terms of the effectiveness of governance.

Deputy Coveney raised the key issue of taxation. This is one of the few areas where decisions still require unanimity. Many people participating in the Convention and Intergovernmental Conference discussions agreed this should be the case. To give a completely personal and biased opinion, I have a feeling we may later conclude that this will not necessarily always be the case. As a consumer of certain products that are looked upon with disfavour here and are highly taxed, and as a drinker of other products looked upon with less disfavour but that are also highly taxed, I welcome the prospect of the harmonisation of excise taxes at an average European level. It would mean I could get my cigarettes and my whiskey cheaper than I do at the moment. It is not always the case that our taxation system is so much better than everyone else's that it should be immunised to external infection.

In closing, we can congratulate ourselves that some of the new member states have decided to take a leaf out of our book on some elements of taxation and are following our lead on corporate taxation. One or two have gone further than we have and will be a source of substantial healthy competition.

Proinsias De Rossa, MEP

Zero.

Mr. Dukes

Yes, in terms of inward investment. They quite often did it following the advice of relevant Irish practitioners. I hope I have dealt reasonably with most of the questions. Regarding the fundamentals of the issues raised, they may be another day's work. I do not know when the referendum will take place. I hear rumours to the effect that some consideration is being given to the autumn of this year, but perhaps the people present who are much closer to the source of these rumours than I will ever be could let us know.

Senator Quinn

Mr. Dukes mentioned cigarettes being cheaper. I have come to the conclusion that, when one does these things, invariably they reach the highest levels rather than the lowest. He should not assume he would pay less for his cigarettes if there were parity of taxation.

The concern I have about the referendum is the difficulty of convincing all the 25 states to vote, in particular the UK, and what has been referred to recently as the collapse of enthusiasm for the constitution and the European ideal among British businesses. It seems the phrase used in the US presidential election between George Bush and Bill Clinton, "It's the economy, stupid", is the one that matters. We have lost sight of the need for growth in Europe. It is being looked for as part of the Lisbon Agenda but we have not yet reached that point. Mr. Barroso must put in a great deal of effort to make sure this is put on the agenda. Currently, with the other matters that must be addressed this is not high enough.

There was an article recently about the European referendum being rigged which stated:

The British Government is being accused of rigging the question in the planned referendum on the European Union constitution after evidence that its phrasing would benefit the yes campaign. An ICM poll for the vote no campaign has found that a subtle change in the wording could make a significant change in the way people vote. Half of a sample of more than 1,000 people were asked the Government question, "should the UK approve the treaty for establishing the constitution for the EU" and they split level, equally — 39% for and against.

The other half of the sample was asked, "if there were a referendum tomorrow would you vote for Britain to sign up to the EU constitution or not". The opinion in this case was 26% in favour and 54% against. Now, the head of ICM said, "the poll showed the wording was designed to produce a yes vote. We would never allow a client to get away with that question. It merely mentioned ‘approve' which invites a positive response and the question does not mention Britain. It sounds as if the constitution is for somebody else.

I mention it because it is very important that the question be asked correctly. I have some experience of mistakes made in the course of my business life with regard to market research and asking the wrong questions, thereby receiving either the answer I desired or the wrong information. The Institute of European Affairs could undertake to advise the Government on how to ask the right question to get the right answer.

Mr. Dukes

At the risk of sounding discourteous, no thanks. That article is rather frivolous if it reads the way the Senator has read it out. When a referendum arises, the Government cannot ask people if they were to vote in a referendum which way would they vote. There must be a specific question. That article sounds to me like perfectly normal and enjoyable political disagreement, but I am not very impressed by it.

Senator Quinn's starting point is an important issue. The issue of growth in the European Union is a major preoccupation. In the institute we are holding a series of ongoing seminars to examine the Stability and Growth Pact and to determine where we might find or encourage the emergence of a new economic dynamic for the European Union. Recent moves proposed by the Commission to concentrate attention on certain parts of the Lisbon Agenda seem to be the right route to take.

It is essential to point out in this context that economic issues are completely independent of any consideration of this treaty. This treaty does not create any new functions or competencies for the European Union in terms of economic growth. Whatever is possible under the Nice treaty will continue to be possible under this treaty if it is ratified. Whatever cannot be done to stimulate economic growth under the Nice treaty will continue to be impossible under this treaty. That is an important point to make because during the course of the debate, inevitably issues will be drawn in. We all know that. We have all been involved in politics for a long time. We know that voting intentions are often affected by considerations that have nothing to do with the issue being examined, and nowhere is that more the case than in referendums.

I read an article in one newspaper last week from somebody who is very upset by changes the Commission is proposing in the level of grants for forestry. He said that if this new treaty contains these proposals, we have to vote against it. The new treaty does not contain those proposals and those proposals are on the table, whether people like this new treaty. I feel bound to add, and I believe it will be published on Thursday, that this is probably a case where somebody cannot see the wood for the trees. We should not mix up these issues. I realise it is difficult to ask people to think about issues in completely separate compartments but as I observed in my response to that, voting against ratification of a treaty for that type of reason would be like me demanding to have another referendum on the 1937 Constitution every time the Government came up with some policy I did not like. That would be absurd. There are ways to affect policy and constitutional treaties, and the two are completely separate.

Deputy Harkin

We spoke briefly about the possibility of some countries not ratifying the constitutional treaty. Does Mr. Dukes have any thoughts on the exact strategy contained in the draft treaty? Does he see that mechanism being triggered? He said that if one or even several countries — I do not know if one would be sufficient or if that is clear — were to vote "No", we would go back to the Nice treaty position or it would go to the Council for decision. If a number of countries were to vote "No", however, does Mr. Dukes see that exact strategy being triggered? Does he believe that is a bad or good idea or is it giving countries a real choice as to whether they want to remain in the Union?

Mr. Dukes

There is a delightful irony in talking about the exact strategy because the exact strategy cannot even come into existence unless this treaty is ratified. A country wishing to get out using that exact strategy has to ratify the treaty and hope that everybody else also does. The exact strategy will not be a way out for anybody.

I will not pretend to be definitive about this but this appears to be the position. If any member state fails to ratify this treaty or decides not to ratify it, the first thing that happens is that we continue to live with the Nice treaty. The structures we have in place in the Nice treaty, the governance system and all of that remain in place and we continue as we were. Clearly, a political question would arise but it is entirely up to the European Council to decide what, if anything, to do about that. Conceivably, it could say it cannot think of anything else to do and we will carry on with the Nice treaty for as long and as best we can. Equally, it could decide to think about it. There is a provision in the treaty, Article 443(4), which states that if, two years after signature of the amending treaty, four fifths of the amending states have ratified and one or more have difficulties in doing so — this is our analysis of it — the matter shall be referred to the European Council. That provision was inserted at the suggestion of the Convention, with the agreement of the Intergovernmental Council, simply to provide some certainty and have a prescription for what would happen in the event of that kind of situation arising.

I doubt if the European Council would wait around for two years before deciding to be seized of the issue. It would probably examine it much more quickly. It might decide to let the hare sit, so to speak, for a while before making any decision. The final day for ratification is some time in the autumn of 2006 and if at that stage a member state has not ratified, I would think by the end of the year, at the December Council, the European Council would consider what it might do. It might decide to do nothing for another year but the matter would certainly go back to the European Council. In the meantime, and until a different decision was made and a different treaty passed, we would operate with the Nice treaty. A whole series of other questions would arise, including whether it would be possible, after the non-ratification of this proposed treaty, to get agreement on anything that would be either better or the same as that. The Deputy's guess is as good as mine. One simply does not know.

Vice-Chairman

Mr. Dukes, thank you very much for appearing before the committee and making a very interesting presentation. You can still draw a crowd; we have a very large attendance here today. I would like to think that is more to do with you than with the Chairman being away.

Mr. Dukes

I thought that had to do with the party Whips.

Vice-Chairman

He will forgive me for that. You have been plugging your seminars strongly also and we will note them as they come up, perhaps with a view to asking some of the people attending to appear before this committee. Thank you again. I ask members to remain while we briefly deal with some correspondence.

Sitting suspended at 4.07 p.m. and resumed at 4.08 p.m.