I thank the Chairman. As members can see from the hand-out I have prepared and brought with me today, I wish to address a number of topics. I am unsure whether it will be possible for me to so do in the time available to me, at least in the initial 15 minutes. However, in so far as I am unable to do so, I will be happy to come back to address the remaining questions after my initial contribution to these proceedings.
As the hand-out shows, what I have to say has been divided up between general observations that I want to make in this regard. I wish to examine the question of whether what Ireland is doing in the area of scrutiny can be regarded as being effective. I wish to make a couple of recommendations of my own on how I consider the role of the Houses of the Oireachtas in European affairs can be enhanced. For some reason I have written down that point twice. In addition, I wish to ask whether a mandate or a scrutiny reserve system such as is operated in other jurisdictions in the European Union would work here. In so far as I address that point, I wish to consider some constitutional considerations; in other words, were we to consider a scrutiny reserve or a mandating system, to ask whether we would need a constitutional amendment. These are the broad topics I wish to consider.
I wish to make seven general observations which I will go through as quickly as possible. First, although not everyone will agree it is a cloud, every cloud has a silver lining and the aftermath of the Lisbon treaty vote is a rare, fleeting moment of opportunity for the Oireachtas to have its relations with the Executive, that is, the Government, altered in its favour and, I hope, altered in favour of the people in general in so far as it concerns scrutiny of European Union policy-making. One did not have to be a fan of Jean Monnet to accept the truth of his statement that people generally only accept change when they are faced with necessity and only recognise necessity when a so-called crisis is upon them. If the Oireachtas has any ambition to increase, in the interests of the common good, its role in the policy-making process at EU level, it is imperative that it now use it. The opportunity may not come again in our lifetimes. The only comparable situation was the aftermath of the "No" vote in respect of the Treaty of Nice in 2001. It is important that the sub-committee be sufficiently bold in its recommendations in this field. If it needs to ask for radically increased resources in this area, even in current circumstances, it must do so. If it considers it necessary to see legislative action or even the amendment of the Constitution, it must call for this because I do not believe this opportunity necessarily will present itself again. This constitutes the first observation.
The second observation is it is important to know what we expect of the Oireachtas when it engages in scrutiny of EU affairs and that it is important for us to be realistic in our expectations. It is important that we do not expect national parliaments, or more accurately, parliamentary majorities to turn suddenly and publicly into powerful influences over policy in European Union affairs, as one writer in this area would have it.
At the same time they do not necessarily have to be the poor losers in European integration that they are often made out to be, as they can exert influence. Arguably one of the most important ways this can be done is by providing for public information and deliberation on European Union issues and by holding governments publicly to account for European Union policies. Some writers in this field use as their criterion for judging the success or otherwise of national parliaments in European Union affairs, their policy making power but that is a flawed and unrealistic task. Even at national level, the primary role of devising policy rests with the executive, and that kind of test is guaranteed to make almost every parliament look bad, including the Oireachtas.
We must have a realistic test that focuses on public deliberation and holding the Government publicly to account. If that is the impact we want European Union affairs scrutiny to have, we must devise a method for making that happen. The kind of things we are talking about are the right to demand information via monitoring and reporting requirements, and the capacity to impose sanctions if those demands are not met.
The third observation is the design or amendment of any parliamentary scrutiny system must take careful account of party political realities. It often seems to be the case that when the role of parliament and government is discussed, it is as if parliament is in one corner of a boxing ring and the government is in the other. Even the Treaty of Lisbon provisions in this regard can be criticised.
That image does not fit with reality, as we all know, as in a parliamentary system of democracy like that of Ireland, such an image is just a fiction. Instead, parliamentary systems are characterised by a different kind of duality. On the one hand there is the executive and its supportive majority and on the other there is parliamentary opposition. That is often forgotten, particularly when we are talking about scrutiny of European Union affairs.
Bearing in mind the correct duality, where does that leave us? It leaves us having to take into account that Deputies and Senators who belong to the Government majority usually have no incentive to criticise publicly the members of their own party, the Executive they have effectively put into power. To do so — for example if they say they do not share the Government's negotiating position at European Union level and that the Government should change its position — would be rather like defeating a Government Bill. It would be a public and humiliating defeat of the Government by its own majority and something which would do little good either for the Government and its stability or the political careers of the backbenchers concerned.
It is unrealistic to expect majority Deputies and Senators to do this but we can expect them to engage in what one writer terms "monitoring" scrutiny. This is to seek information on what a Minister has done at European Union level and find out what has happened in Brussels. For the most part, he or she can then leave what we call political scrutiny — the very different task of asking whether the Minister's actions in the European decision which was reached were appropriate — to the Opposition. In other words, what might be called the public parliamentary police patrol could be left to the Opposition. At any rate, a system which is not designed to take into account party political realities in this manner will not work and there is no point in setting it up in that way.
The fourth point is that we must avoid jumping to simplistic conclusions as to what the effects of introducing particular mechanisms or rules used in other countries will be. The effect of institutional arrangements and formal legal rights, such as, for example, mandate systems, is not uniform in the different national parliaments. It is affected by various factors, such as whether governments are generally majority or minority in nature, or if there is widespread consensus or scepticism about European integration in the country. Identical institutional arrangements can produce different results in different countries and as a result, we should not make the mistake of thinking that if we introduce a Danish-style approach regarding scrutiny in Ireland, it will produce the same results in Ireland as in Denmark.
I am of the view that it would produce positive results, but they will not be the same as those observed in Denmark. Other countries have even greater formal rights than the Danish Parliament. The difference, however, is that they do not use them or at least do not do so in the same manner as the Danes. The mere existence of certain parliamentary legal rights does not necessarily mean those parliaments are willing or able to use them. Therefore, we should not make the mistake of assuming that formal capabilities are equivalent to parliamentary behaviour. In other words, we must ask ourselves how the Oireachtas might use certain rights if they were afforded to it. It may do so in a different manner than the Danish Parliament.
The fifth observation is that neither the existence of qualified majority voting nor the fact that the European Council legislates behind closed doors makes scrutiny impossible. Although these restrictions certainly make scrutiny more difficult, they do not make it entirely impossible. Even if an Irish Minister is outvoted at Council level, he or she can still be made accountable for his or her behaviour at the negotiations or the Government's original position. Council law-making behind closed doors makes scrutiny more difficult but it does not prevent Ministers from being required to offer explanations to parliaments and populaces for decisions they have taken. The restrictions should not be accepted as an excuse for making scrutiny impossible.
The sixth observation is a word of caution. The performance of the Oireachtas in regard to EU scrutiny is likely to be related to the overall performance by Parliament in all its tasks. In other words, factors that negatively affect the Oireachtas in its domestic functions are equally likely to affect its performance in exercising its scrutiny role. These include the relative shortness of legislative terms, the lack of interest on the part of the media and the public in much of what goes on in the Oireachtas, particularly its committee work, and the need for politicians, if they wish to be re-elected, to prioritise constituency work. The reality is that parliaments and their majorities are unlikely to be more assertive in the EU sphere than in the domestic sphere.
A Finnish expert in this area, Mr. Tapio Raunio, has observed that variations in the level of scrutiny among member states have been primarily explained by two factors, the first of which is the role of parliament in the domestic political system. In other words, where the parliament is powerful vis-à-vis the executive in the domestic system, it tends to have a more powerful voice in scrutiny and to exercise that scrutiny more vigorously. The second factor — although I am not advocating Euroscepticism — is that a more Eurosceptical public tends to lead to more vigorous scrutiny. Such attitudes bring their own disadvantages but seem to lead in practice to tighter scrutiny.
The seventh observation is a further word of caution. Even if scrutiny in European Union matters were to function perfectly well, that would not be the end of deparliamentarisation problems. We live in an area of deparliamentarisation for a variety of reasons, including the increasing complexity of life, the need for technical regulations, membership of various international organisations such as the World Trade Organisation, the rise of social partnership, the existence of a highly professional Civil Service, and the development of a strong system of political parties. These factors tend to reduce the influence of national parliaments. Moreover, European Union membership may have led to a certain reduction in the role of parliament in so far as matters are transferred to the European level, although there are broader issues involved.
My final observation is a general one. There are limits to what we should expect of parliamentary scrutiny. These limits are similar to those which operate in regard to parliamentary control of domestic policy-making. I cannot put it better than Mr. Tapio Raunio in his observation that "members of parliament delegate rather than abdicate EU matters to governments in a very similar way to that in which they delegate policy-making authority to government in other matters". Members of parliament normally have their hands full, even without engagement in European Union issues. In choosing the issues on which to focus they tend to make a rational choice, weighing the costs and benefits of various parliamentary activities. Given that re-election and policy influence are probably the primary goals of most members of parliament, focussing on EU matters tends not to be an attractive option for them. In terms of re-election, EU policy may be important in the context of attracting regional funds to constituencies but, it is not necessarily that important to voters who base their voting choices primarily on domestic issues. It is fair to say that certain limits do apply. However, just because we cannot do everything is not an excuse for doing nothing. Reforms are possible in this area and we should have a look at them.
I am not sure if the committee would prefer me to speak now about whether what Ireland is doing at the moment is effective or to outline some recommendations.