JOINT COMMITTEE ON EUROPEAN AFFAIRS (Sub-Committee on Ireland's Future in the European Union) debate -
Thursday, 30 Oct 2008

Ireland’s Influence within EU Institutions and the Interaction between Irish and EU Law: Discussion.

Chairman

I thank the members for attending for the last part of our day's work and thank all our guests for joining us, some of whom have done so at short notice. Before I allow them to contribute, I will describe the background to our work and explain how we conduct our business.

The sub-committee was set up to examine Ireland's future in the European Union in the context of the result of the referendum on the Lisbon treaty. We were given four terms of reference under which to operate and we must produce a report on our proceedings by the end of November. We have broken our terms of reference into a number of modules in order to plan our work and do it on time. The second module, which we are discussing today, concerns Ireland's influence within the European institutions and the role those institutions play in influencing decisions made in Ireland.

There are two reasons we have invited the delegates. First, members of the sub-committee forwarded the delegates' names as experts or individuals with important points of view in this area. Second, the particular issue we want to discuss is Ireland's influence within the EU institutions, with particular focus on the European Court of Justice, and the interaction between Irish and EU law. The speakers will raise a number of different points on this issue. Each speaker will have five minutes in which to give an overview of the current position and outline his or her views thereon. The discussion will then be put to the floor. Each group will have a lead speaker who will have ten minutes in which to put questions to and receive answers from the delegates. We will then return to sub-committee members and provide an opportunity for those who have not spoken. I draw attention to the fact that while members of the sub-committee have absolute privilege, the same privilege does not apply to witnesses. Members are reminded of the parliamentary practice that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.

Mr. Collins has five minutes.

Mr. Anthony M. Collins

I am pleased to have the opportunity to address the sub-committee to assist it in its work. I have not prepared a written submission, principally because I received the letter at very short notice, but that is no criticism of anyone, just a reality of life.

I will address the two items the Chairman mentioned in his introductory remarks. Ireland's influence in the European Court of Justice has possibly never been higher. When I speak of the European Court of Justice, I speak of the court itself and the Court of First Instance which is effectively an administrative court that controls the actions of the Community institutions. There is an appeal against its decisions to the European Court of Justice. There is an Irish representative in the court and also in the Court of First Instance. The first position is held by Mr. Justice O'Caoimh, formerly a High Court judge, while the position in the Court of First Instance is held by Mr. Justice O'Higgins who replaced Judge Cooke who will soon become a High Court judge in this jurisdiction.

The reason I say Ireland's influence has probably never been higher in the European Court of Justice is principally that in recent years the Office of the Attorney General has made a greater effort to have Ireland's voice heard in the court. For the members of the sub-committee who are not familiar with the procedures of the court, there are fundamentally two types of proceedings. There are cases entitled direct actions, about which we need not worry too much for the purposes of this discussion, as there is not a great input on the part of member states. The more important cases are known as references for a preliminary ruling. Whenever members hear any of their constituents talk about going to Europe, that is what they mean, inveigling one of the higher courts or even the District Court, the Employment Appeals Tribunal, or the Appeal Commissioners of Revenue to make a reference on a point of European law to the European Court of Justice. References come from all 27 member states. Each member state has the right to make submissions, oral and written.

In recent years, commencing with the former Attorney General, Mr. Brady, and continuing with Mr. Gallagher, the State has made significant efforts to ensure Ireland's position is put forward in the course of these hearings. As an example, I appeared earlier this month on behalf of the State in a case concerning must-carry obligations for cable television networks in Lower Saxony in Germany. On the face of it, that does not sound like it would have much relevance as regards what happens in Ireland. However, it has a lot of relevance because what the European Court of Justice decides in that case could have implications for must-carry obligations imposed on cable operators in Ireland. The matter was researched by the Attorney General's office and the relevant Department and RTE was asked for its views. The view taken was that we needed to become involved and Ireland's position was put forward. It was, therefore, represented. That has influence on what the court does, because it takes representations by member states very seriously.

Because of our legal tradition of principally making oral presentations instead of written presentations and given the fact that more people — two of whom are here today — have worked in the European Court of Justice and come back into the Irish legal system, the standard of our legal reasoning and argument tends to be very high. For these reasons, Ireland's standing in the European Court of Justice is very high. If one takes, for example, the fact that Judge Cooke was the reporting judge in the Microsoft case — the largest case to date — it is clear that Ireland's standing is very high.

I will try to keep my contribution short. On the influence of Community law in Ireland, it is very important that one bears in mind the fact that Community law is supreme but only in the areas governed by Community law.

There is a notion abroad that primacy, which is a fundamental principle of Community law, means primacy over every aspect of the systems of the member states. That is not true. Community law is supreme where it applies or where member states are acting in relation to Community law. Provided that is understood, then ultimately there must be one answer. Once that is understood many of the difficulties people have are cleared up. Another aspect of importance is that courts do not prosecute cases but rather answer cases that come to them. If the member states want to ensure that the courts will not come up with judgments they do not like, the simplest way to do that — in terms of particular issues rather than matters of principle — is to pass legislation. The court will seek to interpret legislation as adopted by the Council of Ministers and the European Parliament in a manner which is consistent with what the Parliament and Council have decided. The less legislation there is, the more scope there will be for the development of general principles. However, sometimes unintended consequences will arise. Oftentimes the consequences only arise when somebody actually litigates a point right up through the courts system, just as people are sometimes surprised at what happens in constitutional actions. A hard case will come forward, the facts are presented and suddenly the judges have to concentrate on the answer. People may think the constitution must mean this or that, but then the court says what people might have thought otherwise. That is because the judges will have had to concentrate on the matter at hand.

I believe that is probably sufficient for present purposes, and perhaps the Chairman might pass to the next speaker.

Dr. Maria Cahill

I am grateful for the opportunity to present to the sub-committee and I hope what I say will be in some way useful. Members will already have the document I have prepared, and I shall briefly go through some of the points. My interest is in considering this Lisbon treaty crisis and the conflict between national and European law, more generally, by reference to the procedures for amending the Constitution. Constitutional amendment procedures are dealt with under Article 46 which allows us to make amendments to the Constitution on the basis of popular referendum. The constitutional amendability procedure is the point of connection between Irish law and European law. If we theorise that somewhat and reflect on it carefully, it can provide us with the insights we need to address both this issue of the current crisis with the Lisbon treaty and the issue of conflict between national constitutional and European law.

The starting point is that Ireland's membership of the EU is only possible because we use the constitutional amendability procedure to make adjustments to Article 29 of the Constitution. Already the constitutional amendability procedure is the starting point for the relationship between Irish law and European law. It does not make sense to say that Irish law can be subservient to European law if it is the basis on which European law has come into existence within the Irish legal system, to begin with. Article 29 via Article 46 becomes the mechanism by which European law is operative in Ireland, at all. That is not necessarily the interpretation the Irish courts have been giving to this. I am one of those who is not a real lawyer, as I like to say, but rather an academic lawyer, and so I am looking at this in a broader constitutional context and taking the examples I have outlined in the paper from the German federal constitutional court, the Spanish constitutional tribunal and the Polish constitutional court. In each of these three jurisdictions, the highest authority, the constitutional court, has made it clear that when there is a conflict between national constitutional law and European law, the constitutional court must do its job. Its judges must do their job and ultimately defend the national constitution, because it is from this they derive their primary mandate.

Taking the German situation, there has been a string of cases, the most famous, probably, being the Bruner case dealing with the Maastricht treaty, which says the German Federal Constitutional Court must honour the mandate it has from the German constitution. Any instance in which the rights and protection given by the German constitution are overridden, or it is proposed to override them by European law cannot have force in Germany. In that case, there is no general enablement. The constitutional amendability procedure in operation in the German constitution is Article 38. The Federal Constitutional Court specifically says this Article does not give a general enablement to the Community institutions. They do not, therefore, have a carte blanche to make any kind of laws and if they make any laws which are incompatible with the German constitution or the rights protected therein, those laws will not have operative effect in Germany. One of the judges extrajudicially described Article 38 as the bridge, the point of connection between German law and European law.

The Spanish case is much more recent and deals with the constitutional treaty. In the case in question the court says that Article 93, which is the constitutional amendability procedure in the Spanish constitution, is not just a formality but has constitutional content. It mandates a transfer of limited powers but does not mandate a full transfer of constitutional powers. The most important point of the judgment is that the constitutional transfer of powers is part of the constitution and there are, therefore, constitutional limits on that transfer. The Spanish court describes this as a "hinge". While the point of connection is described in a slightly different way in the Spanish case, the same idea is conveyed.

The Polish constitutional tribunal made the same basic point. It, too, regards the Polish constitution as imposing a certain minimum threshold that European law cannot lower. These judgments have been criticised for being aggressive, threatening or in some way disabling the European legal system. This is, however, an overstatement which misses the constitutional point being made in this regard. We need to be more thoughtful in our consideration of these judgments and recognise that the judges are doing their job. We must also recognise that the European system is set up in such a way that these judgments are compatible with what the European Union is trying to do because it always has contingent and delegated competences and does not have original jurisdiction. That is the kind of approach we need to take. I have outlined in more detail more specific issues and their meaning in the context of Irish law. We can discuss these later.

Dr. Diarmuid Rossa Phelan

I thank the Chairman for the sub-committee's invitation into such esteemed company as Mr. Collins and Dr. Cahill, both of whom are known to me. I regard this as part of a pro bono publico service obligation in favour of our country and our Union. I did not take any direct part in the Lisbon treaty debates and I do not have a submission to the sub-committee as such because I was not sure I was supposed to have a view on things. However, in coming here three things occurred to me under the headings, “No Problem”, “Problem” and “Suggestion for Involvement of the Houses of the Oireachtas”.

In the first case, I do not see a legal or constitutional problem with the failure to secure ratification of the Lisbon treaty. Many people do not get what they want and cannot do what they want to do. This does not give rise to a problem as such other than that one must learn to get on with it. The treaty was concluded in the context of requirements for it to be ratified in accordance with the constitutional requirements of the member states. This was tried and everybody knew it had to be done this way but it failed. That is the risk that was taken in the conclusion of the treaty. It is, therefore, a question of moving on in the existing framework. The matters raised generally about the aftermath of the Lisbon treaty referendum have been raised in the margin of that fundamental, straightforward framework. That is the fundamental point. To do the sub-committee full service, I can only put this bluntly. The premise of looking for a problem in our not ratifying the Lisbon treaty is a mistake. There is no problem as such, but if we go down that road, we will cause problems for ourselves and will not perhaps be able to fulfil expectations. There is a yellow brick road to be followed in terms of the ratification of the treaty. It was done, it failed, so be it. I can expand on that if members of the sub-committee wish.

Where I think there is a problem concerns an issue that may not have been fully ventilated. Nobody has come to the political parties or the Government and pointed out that we have had a massive expansion of European competence and state at a European level and asked why there has not been a corresponding reduction in the state at national level, including a reduction in the number of elected representatives, of state appointed bodies and of state employees. It is a matter of time before that argument comes to the fore. It is an obvious argument. If we argue for a government at European level, which exists, and understand how complex that is, an argument will follow for the simplification of the state at national level, both in terms of political simplification and the state apparatus. We have yet to have that big argument here.

There is a positive suggestion to make with regard to the Houses of the Oireachtas. There is already a mechanism in place for the Oireachtas to get involved, albeit an insufficient one. The sub-committee is aware that a mass of complex Community legislation is passed here by statutory instrument. These statutory instruments can amend Acts of the Oireachtas, even though they are subsequent and are not published in the same statute book. This results in a confusion in the law — in determining what the law is — which as a legislature it is the responsibility of the Oireachtas to clean up. Also, it massively reduces the Oireachtas's legislative oversight. Therefore, right now the Oireachtas could become involved in a greater oversight of the statutory instruments that amend Acts of the Oireachtas. Acquaintance with the complexity of the statutory instruments that amend the Acts might give Members an additional insight into the workings of the European Union.

A general comment has occurred to me, but forgive me for the lack of technicality in this regard. It has occurred to me that in moments of difficulty, such as constitutional issues arising from not ratifying the treaty or the obvious difficulties with which sub-committee members are familiar such as difficulties with the economy and in certain social arrangements, there is no reason the State should lack the intellectual ambition to formulate its own view of the best way government should be structured, rather than being purely reactive to the existing structures. There are moments when we can step back and ask whether the arrangements are in place, the arrangements we would put in place if we were asking for the best way for people subject to us to live their lives. That is an important point and we need to bear it in mind.

Chairman

I thank Mr. Phelan and previous contributors for their contributions. They will prompt a wide variety of questions. Contributions will begin with Senator Mullen, followed by Deputies Byrne and Costello, respectively.

Senator Rónán Mullen

I thank all three delegates for their presentations, which have covered much ground. The topics raised have been quite diverse. Members of this sub-committee have different concerns. Most of us supported the Lisbon treaty while some opposed it, perhaps for different reasons. I tended to focus on the need for greater subsidiarity for Ireland in respect of how we work out our destiny on social issues.

There are three headings in respect of which I want answers and they pertain to whether there are mechanisms to allow Ireland a greater measure of subsidiarity. I may not be using the term in the strict sense in which it is normally used in discussions of EU law and institutions. The first question I want to raise is what happens when European institutions, such as the European Court of Justice, or even the Commission in working out its powers, interpreting directives or bringing infringement proceedings, takes a view of the law that conflicts with values either established under the Irish Constitution or which would be part of our constitutional legal order more generally. An example is section 37 of the Employment Equality Act in respect of which the Commission sought to call into question what it believed to be Ireland's overly restrictive interpretation of a particular directive. I presume Ireland had been engaged in the negotiation of the directive. An opt-out clause permitting religious-run institutions to discriminate, as it was put, to protect their ethos was allowed but subsequently the Commission took the view that Ireland's interpretation was too restrictive. It withdrew its objections in the context of the Lisbon treaty debate and we do not know how the issue would have been worked out.

If Ireland wanted to retain the final say, by way of a filtration system, to protect its own interpretation of constitutional rights in particular and to protect values associated with socially sensitive areas, such as the right of religious-run institutions to run schools according to their ethos, or definitions regarding marriage and the family, would it be possible for Dr. Cahill to imagine a scenario in which we could assert Ireland's Constitution, as interpreted by its courts, to be supreme in a way that would not involve our rejecting the possibility of EU laws or their content? In the event of a conflict, could Irish constitutional values be deemed supreme? The Irish courts have not made a pronouncement on this in the way the Germans, Poles and Spanish appear to have done. In light of the way we amended our Constitution from 1973 onwards, is it possible to have circumstances in which constitutional values, as set out in Articles 40, 41 and so on, could be held to be supreme in the event of a conflict?

Is it possible to establish that, in certain areas Ireland might seek to identify, the Irish constitutional and legal order would be supreme without going down the route of having full and entire opt-outs? Is it possible for us to recognise and be part of the European Union's competence in the area of equality, for example, from which the employment equality legislation derived, but to establish nonetheless a filter that would guarantee that the final say would rest with the Irish Legislature or Judiciary? That is my opening question. It is general but viewed through the lens of the employment equality legislation. If I am allowed more time, I might ask a second question.

Chairman

I will give each of the delegates an opportunity to respond. We will start with Dr. Cahill.

Dr. Maria Cahill

The concept of subsidiarity is not used consistently or with any technical rigour across institutions or among academics. Perhaps we can have the conversation without using that term. My understanding of the relationship between national constitutional law and European law, irrespective of country or any kind of issue, is that because European law exists in any country by virtue of the constitution of that country, the constitution, from a theoretical point of view, must always have the final say. That is the only way I can understand it as an academic lawyer. From my point of view, it is not that any country would get permission from Europe to assert its own constitutional validity in the final event but that that is a jurisdiction it inherently has and it is up to it whether it surrenders.

Senator Rónán Mullen

That has not been held by the Irish courts. There is no guarantee that they would——

Dr. Maria Cahill

There are some dicta on each side, there are some which say that the constitution is supreme and some which say that European law is supreme. There has not been one single case where the issue has been central.

Senator Rónán Mullen

If there is nothing to add to that, I ask if there is a mechanism whereby that issue could be put beyond doubt.

Mr. Diarmuid Rossa Phelan

On first hearing of it, it seems that what Dr. Cahill says is correct. One can do this quite simply. The Oireachtas, as the Legislature, can simply amend the European Communities Act, which it has amended many times in the past, but this time it could be amended to restrict the application of Community law in the ways that the Oireachtas desires. In that way the matter can be put beyond doubt.

However, there is a significant problem here in that from a European Community law point of view the amendment would cause a problem and the European Union would be very sensitive about it. The question is whether the Oireachtas would be able to square that.

In terms of subsidiarity, the most obvious way for the Oireachtas to proceed is to exercise control over the Government that reports to it, that it elects and appoints. The most obvious way to do that is to control the statutory instruments that amend the laws enacted by the Houses of the Oireachtas.

Mr. Anthony M. Collins

The first point is that we must look at the nature of our constitutional amendment. Our constitutional amendment is very clear. Nothing in the Constitution can stand in the way of either Community Acts, measures or laws or Acts measures or laws adopted by the State which are necessitated by the obligations of membership. That is the law as it stands. I appreciate what Dr. Cahill is saying, but I think the weight of the authority clearly is in favour of interpreting that provision on its face. I do not think there is room in our constitutional order as it stands for the Supreme Court to set aside a provision of the Constitution. If I recall the words of Mr. Justice Walsh in one of the earlier SPUC cases, in describing an order made by a High Court judge, Ms Mella Carroll, who is now deceased, no judge has a right to suspend a provision of the Constitution, a fortiori the Supreme Court does not have the right to suddenly say, “Sorry, although it is necessitated by the obligations of membership, we think the Constitution trumps it.” That is not there. The nub of it would be if one wanted to change that position one would have to change the form of constitutional amendment that is put to the people.

I do not agree with the statement that this could be done by amending the European Communities Act because Mr. Phelan has correctly pointed out that that runs into an immediate problem with EU law. Clearly, if the Oireachtas will only transpose measures of EU law that comply with whatever the Oireachtas wants, that is completely against established EU law. It is important to point out that before we joined the European Community in 1973, the Government published a White Paper in 1972 in which there were references to the existing state of Community law at the time. All the leading principles that people talk about, whether with a primacy or a direct effect, date back to the early 1960s. It is not, therefore, a question, as sometimes is insinuated, that the courts have been acquiring power, the judges have been activists and new principles are being introduced that we did not know about. When we joined the European Economic Community, not only was it a body that was evolving, but also the principles of direct effect and primacy were already clearly being enunciated. What has happened since has essentially been the working out of those principles.

If Senator Mullen wanted to do what he suggests, I believe he must look at the form of amendment. Sometimes it is difficult to square everything, but at times it is possible to square some legal circles. It may be possible to come up with something, but one aspect is important. The example the Senator took might not have general application, but it concerned the interpretation of a directive. It is clear that the member states still retain the power to control the content of directives. That is one of the reasons the Lisbon treaty had the great benefit, as I understood it, of the yellow or green card system — I cannot recall the precise colour. The Oireachtas and parliaments of the other member states were to have the power to block legislation or at least raise particular issues and signal those to other member states at the time legislation was being adopted. I agree with Mr. Phelan that there must be greater involvement of national parliaments in the decision-making process, both in terms of Ministers being answerable to committees of the Houses, as in Ireland's case, and the Houses controlling what comes out and their involvement in the various stages of discussion.

Therefore, the difficulties in many of these cases can be avoided by Ireland simply holding its position. To give a non-contentious example, most environmental legislation in this State comes from Europe. Much of it dates from the 1970s. Ireland signed up for all this legislation because in those days unanimity applied. Take the waste directive, for instance. When the waste directive is worked out in practice it has serious consequences for the way in which the environment is treated in Ireland. The consequences are still being felt today. Infringement proceedings are in train against the State concerning wastewater from septic tanks. People were not thinking that way in 1975, but it is just working through the principles. If one is properly involved and sees what is happening, one can have a serious influence upon the outcome of Community legislation. I am not here to speak on the political views of Lisbon, one way or another, but I do not agree there is not a problem.

Chairman

I shall hand over to Deputy Byrne in a moment.

Mr. Anthony M. Collins

One of the things this House has lost out on as a result of the referendum is its ability to interact with other institutions as well as its ability to take Ministers to task and find out what is going on, thus controlling legislation before the Oireachtas is forced to adopt it by statutory instrument.

Deputy Thomas Byrne

I welcome everyone to the sub-committee. Two of the guests taught me in college. I worked for one in college and the other guest's father taught me in school.

Deputy Timmy Dooley

We can take it out on them so.

Deputy Thomas Byrne

However, I did not invite any of them to today's meeting. One of the things I am concerned about is the wording of the amendment. I believe that politically it caused enormous problems with the Lisbon treaty. It was, properly, posted out to every voter, but with no explanation. People just saw this fairly long amendment to the Constitution, as proposed, and that caused problems. I am very disappointed Sinn Féin does not have a presence here today because it places enormous store on the issue of supremacy and argues about the Irish Constitution and Irish law being totally subservient to Europe. How do we word a constitutional amendment that squares the circle, as someone said?

Dr. Cahill has made some really interesting points. She bases her argument on several cases in other countries which are at variance with several other cases at European and domestic level. Do we need to change the essential wording of the amendment or is Dr. Cahill presenting a political argument that the Irish Constitution is the basis of Ireland's membership and cannot, therefore, be undermined? I do not suggest it would be undermined for reasons of political expediency. As the basis of our membership, the Constitution is supreme and it is only as a result of an amendment to the Constitution that European laws have effect in Ireland.

Without meaning disrespect to Dr. Cahill, some of the other points she makes do not have a legal basis. They may be political points because there is nothing in the Constitution to prevent us from going to the people again, although we may choose not to do so. I do not agree that we cannot ratify European treaties if we believe we cannot pass a referendum. Do we need to change the question put in the referendum? Are Dr. Cahill's propositions in No. 1 and No. 4 valid political arguments regarding Ireland's relationship with Europe? Are they legally correct?

Given that the purpose of the sub-committee is to examine Ireland's future in Europe, I ask our guests to elaborate on the problems Ireland faces. Do they believe such problems exist? At political level, no one questions that Ireland has benefited from membership of the European Union. As academics who interact with the EU legal system, do our guests believe we have problems in this area?

Dr. Maria Cahill

On the question of whether we need to change wording, I presume we are referring to Article 29.4.10° of the Constitution, in which the phrase "necessitated by the obligations of membership" is used. I do not accept that the meaning of this phrase is completely clear.

Deputy Thomas Byrne

Has the explanation of the phrase not been set out in various cases?

Mr. Anthony M. Collins

The phrase has been discussed in a number of cases going back to the early 1990s in which it has been made clear what is and is not necessitated by the obligations of membership. There are some aspects of the issue which remain open. The reason the sub-committee has before it three different people with three different approaches is that lawyers disagree — that is also the reason we have litigation. My view is clear. I have no doubt what the answer would be if this matter went to the Supreme Court, at least as it is currently constituted. It is up to the people if one wants to put a different form of amendment.

It is important to point out that this is not just a question of the Constitution because the people of Ireland amend the Constitution. Power rests with the people and the notion that the Constitution has some higher status and is above the people is false. I am reminded of what Mr. Justice Donal Barrington once said many years ago in a lecture he gave on the day Dr. Phelan's book, Revolt or Revolution,was published. At the time, there was much talk about the supremacy of the Constitution and how it is much higher law compared to European law. Mr. Justice Barrington made the point that in the case of the Constitution, one quarter of those who were supposed to be able to vote for it could not do so because they were in Northern Ireland, a further one quarter abstained, slightly more than one quarter voted in favour of it and slightly under one quarter voted against it. When one compares that to the mandate of 80% given by the people of Ireland in a very well attended referendum in 1972, one has to ask if one is going anywhere with the argument on the Constitution.

The main issue is that the people amends the Constitution and if people want to cede their power and give supremacy in Community law where it counts, it is their decision and they can make it. If, on the other hand, people want to put on a brake and say they are not prepared to do this, they can also make that decision.

Dr. Maria Cahill

The definition of the word "necessitated" in the relevant constitutional article has been argued in the courts but only in terms of the implementation of directives. It has not come up with regard to the question of conflict between fundamental rights and the European law. It has also been interpreted in the Crotty case.

Deputy Thomas Byrne

Does Dr. Cahill suggest there may not be a conflict?

Dr. Maria Cahill

There is an argument to say that "necessitated" under a definition which does not mean "anything consequent on" or "anything following from" could mean that it would be possible to achieve what one is trying to achieve within the framework of the Constitution as it stands. If "necessitated" means "consequent upon", we should not even have a referendum about the Lisbon treaty, if we are going to be kicked out of the European Union. If "necessitated" was going to be interpreted in such an expansive way, there would be no need for the Crotty decision and then the Crotty decision is incorrect. Therefore, the definition of "necessitated" is where it is at and that definition is not entirely clear to me.

On the question of the problems for the European Union, if we were to put ourselves in a position where we would declare that some piece of European law is contradictory to the Constitution, this would be a new problem because it has not arisen. In the cases I just mentioned those constitutional courts have retained the jurisdiction to make the point to invalidate European law by reference to the national Constitution, but they have not actually ever done it, just retained the possibility. Therefore, that would be a new question and problem.

Dr. Diarmuid Rossa Phelan

I have not seen Dr. Cahill's paper, but it is obviously a nuanced one. I am reluctant to comment on it on the hoof. What Mr. Collins had to say in his penultimate submission carried some weight with me and, to some extent, qualifies my previous remark.

I am not entirely sure what problem Deputy Byrne identified with the existing draft.

Deputy Thomas Byrne

It is a political problem.

Dr. Diarmuid Rossa Phelan

Is that because people had difficulty understanding it?

Deputy Thomas Byrne

They had difficulty understanding it and with the interpretation.

Dr. Diarmuid Rossa Phelan

That struck me too. The people drafting it were good and I suspect much thought went into the draft. I would be very reluctant to tinker with it on the hoof, because it has carried things all right to date. People can live with a certain level of ambiguity. However, if people wanted to do something particular with it, it could be done. It can be shortened or elongated or reservations could be included. As Mr. Justice Barrington was cited, I recall he said that the presence of Community law in the domestic system turned on the Act, which Act was protected from constitutional invalidity by the constitutional amendment. In this area I differ somewhat from Mr. Collins. We can change things by changing the Act. We can do that and have permission to do that, but it does give rise to a Community law problem. We could also change things by changing the Constitution, but that would also give rise to a Community law problem. On that point I do not differ with Mr. Collins.

This is somewhat nuanced, so I would like to go over it again. The Act is what grounds the presence of Community law. To keep the Act constitutional, we need the amendment. Therefore, if we remove the amendment, the Act falls. However, we can change the Act without changing the amendment. The State may need constitutional permission to become a member, as a separate matter, but in terms of the way Community law is grounded, we can change the Act without changing the Constitution. That does not help with the problem of what goes through the letter-box, but I cannot help the sub-committee on that.

The question on the second problem is a fair question about the general future. It is possible that the refusal to ratify, presented us with an opportunity as well as a problem. I accept, for example, that the diplomatic corps negotiated hard. I have heard of them that they were centrally involved in resolving some of the core conflicts during the negotiations that took place in the treaty's first iteration as the Dublin treaty. That work is not to be gainsaid. It might present an opportunity to take a different stance, such as siding with the popular decision and reflecting on the necessity for a similar one in other states.

I see that Dr. Gerard Hogan has arrived so I will immediately cede the floor.

Senator Rónán Mullen

I have never seen so many heavy guns in one room.

Chairman

I will let Mr. Collins make a point, after which Deputy Costello may contribute.

Mr. Anthony M. Collins

Deputy Thomas Byrne raised two very important points, the first of which concerns the question of the constitutional amendment. One must ask why our constitutional amendment is so convoluted. It is simply because, in the spirit of what Dr. Cahill has referred to, we concede as little power as possible to the European Union or European Communities. If we conceded considerable amounts, it would be a very simple way to amend the Constitution. We do not want to do so.

All sorts of issues arise over options and discretion. Opt-outs and various amendments refer to the treaties of Nice and Amsterdam and questions arise over the nature of options and discretions. Consequently, to protect our position, we have adopted a very complicated type of constitutional amendment, which on its face is very difficult to understand but which in fact is not.

I believe Dr. Gerard Hogan referred to this issue in a recent speech about which I read in a newspaper but which I was not present to hear. He asked how many people understand all the sections of the Finance Act. I consider the constitutional amendment in the same way. People should receive copies of it and they are entitled to see the contract, just as one is entitled to see one's title deeds if one buys a house.

It behoves politicians not to get so hung up about this matter. It is a cheap argument to state the amendment is so complicated one cannot understand it. One of the anti-Lisbon treaty campaigners, Mr. Ulick McEvaddy, enters into extremely complicated contracts for airline leases all the time, yet he cannot understand a few paragraphs in the Constitution. One therefore does not find his type of reasoning persuasive. However, it needs to be explained to the people that the amendment is as it is because it is a bit like a contract; it is trying to keep as much as possible and look after the people's interests. That is why it is convoluted.

Deputy Thomas Byrne

My point on complication concerns the wording of the proposed amendment to the Constitution. I was not referring to the treaty.

Mr. Anthony M. Collins

I mean the amendment. The amendment itself is convoluted because it must be.

Deputy Thomas Byrne

It cannot be made simpler.

Mr. Anthony M. Collins

It could not be made simpler unless we agreed to go wholeheartedly into the entire gamut of European Union and European Community co-operation and leave aside all the opt-outs. I would be in favour of this but, if it is not a runner politically, so be it. The lawyers just draft it to get around any difficulties.

Chairman

I will return to this but want to allow Deputy Costello to make his points.

Deputy Joe Costello

I am very reluctant to get involved at all with all these lawyers. I thank them for attending. I see my old friend Dr. Gerard Hogan is present; we go back a long time.

My first question, which concerns the points of Mr. Collins in particular, seeks further clarification on the European Court of Justice. Are judges ever allowed to hear cases from their own member states? Who takes cases to the European Court of Justice? Do the institutions take cases thereto? Will the delegates state how frequently cases are taken and the types of issues that are likely to arise? Are sensitive social issues likely to arise or are the issues very much market-orientated?

Community law is supreme in the area of Community competence. Let us consider an example in respect of the Charter of Fundamental Rights. Are there provisions in the charter that are above and beyond the competence of the European Court of Justice? To what extent do they become amenable to our own courts?

Are we not in a bind in terms of the statutory instruments to which Dr. Phelan referred? The Oireachtas has already passed the European Communities Act 2007, which provides for statutory instruments, and that is the mechanism by which the line Minister will introduce the particular directive. Does Dr. Phelan suggest we will have to change the legislation to provide more oversight and scrutiny of it?

Should we not take a broader view of the whole situation? The European Commission has the authority to initiate the process of legislation, but is there not scope for us as a Parliament to suggest that we should be involved at that early stage in what is being drafted, in addition to the function we exercise in terms of scrutinising everything that comes before us? If that work is done, especially in the context of the extra subsidiarity powers that would have been conferred by Lisbon, then we would be able to tease out precisely what comes within the competences and what does not. In that way there would be no danger of issues getting into European Union law that should not be there.

When it comes to constitutional matters, in terms of approving the treaties, every treaty that we have passed has contained a caveat of one sort or another. We have introduced constitutional amendments to the effect that Ireland's neutrality or position on abortion is taken into account. We are taking precautions against giving any competences that we do not want. We have it weighed up very clearly already. I do not see where the problem arises. Are we talking about a hypothetical situation that has never arisen? Can anybody give an example of the problems we have been discussing for the past hour? If that is the case after 35 years of membership of the European Union that situation is questionable.

One issue was raised by Senator Mullen on section 37 of the employment legislation. Can the witnesses envisage that situation where it would seem to give particular preference to religious orders employing staff in the context of the ethos of the school? Mr. John Bruton told us earlier that Article 17 of the treaty of Lisbon is so strongly focused on protecting the status of religious orders, and all religions — it is not in the Nice treaty or any of the other treaties — that there is far more protection given to sensitive social issues already, and that would not be a possibility if the Lisbon treaty had gone through. Let us say the Lisbon treaty was not there, and it is not there at present, what is the procedure with that? In a case such as that, if there is a directive from Europe that says Ireland is not implementing legislation in accordance with the spirit of the principles of equality, and that case goes right up to our Supreme Court where an adjudication is made, and if somebody is unhappy with that and they go to the European Court of Justice, is the nub of the question that some say it should not go to the European Court of Justice but that it should be decided by the Supreme Court, which should have supremacy over the European Court of Justice and others say that is not the case at all, that this is European law and the European Court of Justice is supreme?

Dr. Diarmuid Rossa Phelan

My apologies for not directing my remarks in part to the Chairman, but he just happened to be on the other side of the room. However, I have been looking over.

Chairman

It has not been easy to conduct the meeting so far, but I do not mind at all.

Dr. Diarmuid Rossa Phelan

As the other guests will, I am sure, want to reply to Deputy Costello, I will concentrate on the issue he addressed specifically to me concerning statutory instruments. However, I am happy to discuss the other matters with him at any time.

Regarding statutory instruments, he is correct that the European Communities Act entrenches this mechanism and that Ministers avail of it. There is other legislation, not just the European Communities Act, but in specific areas, which also has this mechanism for implementation pursuant to Community law obligations. Therefore, it is not necessarily contained solely in a single Act since other legislation has been passed subsequently. Two possibilities arise. One is the existing mechanism, where statutory instruments that are laid before the Houses are in fact reviewed by the Oireachtas, rather than just sitting there for the required period. The second possibility is to amend the Act. The problem, I suspect, that will be encountered is one of resources, namely, time and the complexity of the issues involved. However, a mechanism already exists which allows the Houses greater involvement in reviewing statutory instruments that amend legislation and it is underutilised.

As to the issue of resources, in terms of time and complexity, I will proffer my own view, for what that is worth. I disagree fundamentally with the point made by Mr. Collins that complexity is not an issue. Aircraft leasing deals are one thing but a constitutional structure is the most important structure beneath which people live. My view is that they are entitled to have a structure which is penetrable by them without being an expert. The Deputy will find that if the Oireachtas exercises this level of supervision over the Government — the Ministers in particular, who are enacting the statutory instruments — the level of the complexity is extraordinary. The complexity results inter alia in costs down the line in terms of litigating it and time. I believe there is a fundamental problem in the way things are structured. Matters have become too complex, too costly, too time consuming and too overarching in their ambition so that people cannot seem to be able to control them. The Oireachtas cannot seem to control sufficiently the Government exercise of legislative power through statutory instruments.

Dr. Gerard Hogan

I am at a slight disadvantage in that I missed the first hour of this debate. However, I would like to take up some of the points raised by Deputy Costello. Some of them might have been addressed to Mr. Collins, but I will endeavour to pick them up. In terms of the Court of Justice, routinely the type of cases it has dealt with in the past have been those relating to the Internal Market — taxation, VAT, institutional issues, competition cases, references from national courts, etc. If one did a span over the past 50 years or so, perhaps 95% of the cases would have been in the economic, taxation, competition and institutional area.

As increased competencies have been conferred on the Community and Union, one finds that more areas verging on fundamental rights are beginning to emerge. One saw this recently in terms of the judgment concerning the free movement of spouses. That judgment of the Court of Justice in July was a reference from the Irish High Court, and there have been judgments in areas dealing with the Brussels regulation of recognition of foreign divorces and matters pertaining to family law. However, up to now at least, jurisdiction has been largely confined to the economic institutional arena.

That follows on in respect of some of the questions directed towards the charter. At a legal level, there are issues in the drafting of the charter. In some respects, the drafting might have been better and there are issues of interpretation. Depending on how these issues are ultimately interpreted by the European Court of Justice, the charter may not mean anything. That is one possibility. Another possibility is that the charter may ultimately produce significant results. The problem is that I find it difficult to state on an a priori basis how the charter will be interpreted. I find myself wavering between different positions as to how it is likely to be interpreted.

Without discussing the detail of the charter at great length, one issue is that it only applies to member states when they are implementing European Union law. It is hard to say on an a priori basis what this means. Is the charter triggered by purely accidental or geographical factors such as nationality? Many of the rights are expressed to be subject to national law in practice. What happens if one does not have national law practice in the area in question? Can national law in practice be challenged?

Many of the propositions advanced about the charter in the course of the referendum campaign were far-fetched and verged on the legal equivalent of "flat earthery". Examples related to issues such as abortion, the compulsory detention of young people, the death penalty and euthanasia. While it is very difficult to respond to some of them, I do not believe there is a lawyer of standing in this jurisdiction who would be prepared to stand over some of the more absurd claims made about the charter.

While questions of interpretation arise about the charter, they are unlikely to keep the average citizen awake at night. They are issues of considerable importance to legal specialists in much the same way as the interpretation of the VAT directive is undoubtedly of interest to tax specialists, VAT lawyers and so on. I find aspects of the drafting of the charter unsatisfactory but in saying that I am wearing my lawyer's hat. I have concerns about the style, set-up and structure of the charter. These are legal criticisms but the political criticisms of the charter levelled during the course of the referendum campaign have no basis in reality. I do not recognise the version of the charter advocated by some of the people making claims about it.

Mr. Anthony M. Collins

I wish to make two points. In response to Deputy Costello, it is the case that one can have a case which is a reference from Ireland being determined by a bench of judges that does not contain any Irish judge. It is a completely mixed up system and there is no room for dissenting opinions in the European Court of Justice. One judgment is made. The judges must decide among themselves what line they will take and the judgment is then presented.

On the type of cases brought forward, while I concur with Dr. Hogan in this regard, two areas of particular importance to citizens, one environmental and one social, have emerged from the case law of the European Court of Justice. In the social area two judgments were delivered this year alone, namely, in the IMPACT case and the Metock case — Dr. Hogan referred to the latter case — both of which had clear impacts for ordinary people in the State. In addition, both cases arose from references from the Irish courts — the Labour Court and High Court, respectively — to the European Court of Justice in Luxembourg and in both the court expressed a view that was opposed to that being taken by the authorities.

The beneficial effect of European law can be seen in the most obscure areas, for example, in road traffic litigation where insurance companies will not pay if one is an uninsured person in a commercial vehicle, whereas under European law, they must do so. This area is being litigated currently and there is little doubt of the outcome. European law has a direct beneficial effect for ordinary citizens by means of the preliminary reference procedure.

To pick up on a point made by Deputy Byrne, there is an important point to make. The question is whether we see a loss of influence occurring as a consequence of our decision not to ratify the Lisbon treaty. To be candid, I agree we do. It happens in this way. If there is no improvement in the manner in which the Community is run, there will be increased recourse to enhanced co-operation. This means we will have rules among groups of member states and we will be outside of that. We will end up with a splitting up of Community law.

This process has already begun, as can be seen if one looks at the judgment in the Metock case. I know this well because I took part in that case. A paragraph in the judgment states that what the Irish Government states is inconsistent with a directive of which it is not part. Ireland opted out of that part. The court has said the logic of what Ireland says is inconsistent with a measure which it is not part of because it opted out of it. If we keep opting out of parts of Community law, we will find it will develop without us. If it develops without us, our influence is lost.

Deputy Lucinda Creighton

I welcome all the guests and apologise for arriving late. I have some simple and straightforward questions and do not wish to rehash ground already covered. What has happened here has political and legal implications and gives rise to a question relating to the German model, with which our guests may be familiar. In the Bundestag, the German Government was experiencing similar problems to those encountered by the Irish Government, namely, it was finding it difficult to gain a majority for the Lisbon treaty. As a result, in its efforts to ameliorate some of the concerns raised by Bundestag Members, the German Government entered into a treaty of sorts with the Parliament. This treaty, in general terms, obliges the German Government to report back to the Parliament and keep it fully informed, etc. Do our guests think a solution on those lines might be possible in the Irish context, between the Government and the Oireachtas, in terms of monitoring and informing parliamentarians and taking some guidance from them in terms of the positioning of the Government on a variety of issues at Council level ?

I do not have a detailed knowledge of the German situation, but Germany has also entered into a binding arrangement in terms of its constitution, with regard to specific issues of concern to German parliamentarians and the public. It has managed to enshrine certain things as being exclusively national competencies in the context of issues it believes to be supreme in terms of European law. In other words, the objective is to inform the Commission, the European Court of Justice, etc., that some issues are a matter for German law and not for the European Union. Do our guests believe something along those lines could be drawn up through our Constitution, Bunreacht na hÉireann? Would there be any merit in considering ways we could suggest to the Commission it should keep its hands off certain matters because we believe they are not subject to European law, either through jurisprudence of the European Court of Justice or legislative proposals emanating from the Commission? Could a wording be found to amend the Constitution accordingly? I am not sure this makes sense, but I would certainly like to hear the delegates' views on it because we are trying to find solutions to the current impasse at a national level.

Dr. Gerard Hogan

Deputy Creighton is partly correct. Article 23, the German basic law that deals with the German transfer of competence to the European Union, provides specifically that the Bundestag must be kept informed. The transfer of sovereignty is predicated on that. I do not believe there is any specific provision in the German constitution that definitely immunises any specific part of German law in the manner the Deputy suggests, but there have been decisions in the German constitutional court that indicated it would have the last word in terms of whether the European Court of Justice has jurisdiction to pronounce on certain matters.

Article 23 of the German basic law might serve as a model because it is positive. It states Germany wants to transfer competence provided certain listed steps are taken. One of these is that there be co-operation with the Bundestag, the German Parliament, in terms of the transfer of sovereignty and what is happening at European level.

Deputy Lucinda Creighton

Has the decision of the court been tested?

Dr. Gerard Hogan

There has been some skirmishing but it has never really gone further. Many of the questions about what the German constitutional lawyers call the "competence-competence question", in other words, the question of who has the final decision on who has competence, are theoretical. It has been finessed in practice. This will possibly be decided as EU law evolves and as there are more member states and competences, etc., but at present there have been very few practical consequences, notwithstanding the fact that considerable volumes of academic literature have been produced on the matter in Germany.

Dr. Diarmuid Rossa Phelan

The first point on the idea of a treaty with the Government is interesting and well researched. The Bundestag is the ratifying body. The people must be borne in mind and, consequently, to talk about a resolution in terms of a treaty between the Government and the Oireachtas does not transpose over. One could say bluntly that there was a mechanism but that it did not succeed, and that talking about another mechanism risks losing trust. If one had a contract and those who produced it said there is now a better contract, one would ask whether one wanted to deal with them. I could elaborate on that aspect.

On the point about the reservation in the Constitution, anything one would do at that level would also have to be squared at treaty level. There is a mechanism which is protocol. The Community treaties are set up so that the competence-competence issue does not arise, but competences are specified. The specification in the treaty has actually led to an extension by a broad interpretation of competence. In other federations where the mechanism has been set up, in origin more federal — I believe this is the case in Canada — with a specification of reservations for the state, in fact and law it has ended up in an interpretative way more favourable to the state. One must act within the existing framework. To change this would require a very radical overhaul at treaty level.

Mr. Anthony M. Collins

I do not have anything to add to that.

Senator Déirdre de Búrca

I wanted to address my first question to Dr. Cahill but she is not present. I will, therefore, ask my second question first. It concerns the relationship of the Irish courts with the European Court of Justice, specifically the preliminary reference procedure that was referred to. How satisfactory is this procedure? Does the Supreme Court have total discretion in whether it refers a point of European law to the European Court of Justice? I ask that question because I am a member of the Green Party and I am aware that many citizens have taken cases to the High Court and, ultimately, to the Supreme Court on what they believed was a point of European environmental law but they failed to be referred to the European Court of Justice. Is there any degree of territoriality or what can explain the decision or otherwise of the Supreme Court to refer a point of European law to the European Court of Justice? Is it satisfactory from an individual citizen's point of view that while he or she may believe, and have been given legal advice, that the point of European law being raised is relevant and merits being referred to the European Court of Justice, it is not referred at the discretion of the Supreme Court?

I apologise because I do not have a legal background and, therefore, much of the technical discussion at the beginning was slightly above my head. I was a little confused. I will try to put my question as simply as I can. What I understood Dr. Cahill to say is that Article 29.4.10° of the Constitution grounds European Union law, that it is the mechanism by which European Union law is grounded in the Constitution.

Dr. Maria Cahill

It is Article 29 as a whole.

Senator Déirdre de Búrca

Excuse me. It is Article 29 as a whole. Dr. Cahill said that as a result European Union competences are contingent or delegated competences. Is that correct? If that is the case, then I am confused. During the Lisbon treaty debate I was very aware of the primacy of European law, which was stated explicitly in the constitutional treaty for the first time and caused great concern among many citizens who seemed to be unaware of that. European Union law has primacy over the constitutions of member states but how can that be the case if the European Union's competences are delegated or contingent? Is there something wrong in my interpretation? In the case of an apparent conflict between European Union law and the constitutional law of a particular member state, what principle can be then used to try to resolve the conflict if the primacy of European law is being called into question?

I will direct my other question to Mr. Collins. He indicated that in the absence of legislation the European Court of Justice had wider scope to interpret based on points of principle. Does that mean when new treaties are adopted and new competences are conferred on the European Union that in advance of significant legislation being enacted on the basis of those competences, there is a danger that in those early years the European Court of Justice might find itself interpreting on the basis of the provisions of the treaty and, therefore, making much wider interpretations than might be the case if legislation was in place?

Dr. Maria Cahill

It is the European Court of Justice that has claimed that European law has primacy over national law, including national constitutions. That was not originally in the treaties, as Senator de Búrca recognised; it was included in the constitutional treaty and then removed from the Lisbon treaty. The national constitutional courts in certain of the member states have disputed the European Court of Justice's claim to primacy in their national jurisdictions. The ultimate arbiter question is a matter of contention between national constitutional courts that have disputed the question of the primacy of law in their national jurisdictions. My understanding of how the issue can be solved in conceptual terms is by theorising the national commitment. The national commitment is to membership of the European Union on the basis of a national constitution. In the same way as one commits to any endeavour or engagement, it is on the basis of one's own identity and one does one's best to fulfil the requirements of the thing or person to which one commits. If there are circumstances where what is being asked is just too much, one has to say it is too much. This conflict would not emerge, willy-nilly, or on a general basis because what we are signing up to is a European Union of constitutional democracies. They are our neighbours, we are familiar with their legal systems and we agree about a great deal. However, in certain circumstances we might find it impossible to agree with what they require, and then the final say should be with the Irish courts, Constitution and people, because that is the constitutional arrangement we have.

Mr. Anthony M. Collins

I have to answer two questions asked by Senator de Búrca. The first one concerns references from a preliminary ruling of the Supreme Court. There is an obligation on courts of final instance which could be the High Court or the Circuit Court, depending on what the case is about, to make reference for a preliminary ruling to the Court of Justice. That is an obligation in Article 234 of the EC treaty, with which those courts are required to comply since all organs of State including the Houses of the Oireachtas are required to comply with the Community law obligations. The question then arises as to whether the Supreme Court has complied with its obligation. The only way this may be definitively resolved is if an infringement procedure were taken by the Commission against Ireland, alleging that the Supreme Court was failing to comply with its obligations. That is not a theoretical possibility because in the 1960s the Conseil d'État, the supreme administrative court in France, declared it would not make references to the Court of Justice. The Commission more or less threatened to bring proceedings against the French Government. Somehow or other no proceedings occurred and the Conseil d'État regularly makes references to the Court of Justice. These matters were resolved and such problems tend to go away.

Senator Déirdre de Búrca

What about the Italians?

Mr. Anthony M. Collins

Our arrangements for dealing with legal issues concerning environmental matters are unsatisfactory. I do not believe that where legal issues are involved we should effectively have a system whereby there is one hearing in one court only, and it is very difficult to have an appeal. I can understand the reasons for restricting the appeal and keeping matters tight, but that should not be done as it is at the moment. However, that is our problem and it has nothing to do with Community law.

There was a time when it might have been valid to make that criticism of the Supreme Court, but in recent times my impression is — and my colleagues may disagree — that the Supreme Court has become slightly more aware of the necessity to make references, where appropriate. The problem, as regards environmental matters, is that such cases do not get to the Supreme Court if a certificate cannot be obtained from the High Court judge. It is a bizarre system, and the judge has to certify, but that is all to do with Irish law. If the point gets to the Supreme Court and it is required to determine the case, I believe it would make a reference. The current level of expertise in the Community law area on the Supreme Court is of assistance because at least three of its members are very conscious of their obligations in that regard. I am not certain that is as much of a problem as it might have been, but it is a home grown issue, and needs to be tackled, even from the perspective of having a State run according to law — a very important principle that needs to be upheld at national and at supranational levels.

As regards the other question the Senator asked me concerning the issue of the amount of powers given to the courts, it is important to note that nearly all the competencies now given to the Community enable it to adopt legislation. It is important to note that nearly all the competences that are now given to the Community enable it to adopt legislation. They are not free-standing measures such as Article 30 of the European Community Treaty which states, for instance, that one cannot have any impediment to interstate trade in goods, or provisions such as Article 81 which states, in effect, that one cannot have cartels and anti-competitive arrangements. These provisions are open to a court taking them up and running with them because they are broad statements of principle. One now notices more and more provisions in the treaties stating that the Community may adopt measures in given areas. However, if there is not a measure to adopt, a problem arises.

There is one area of difficulty that should be pointed out. There is a principle of Community law which says that while a member state may validly exercise its powers under its own legal system, in doing so it should not conflict with the operation of Community law generally. Let us take as an example the taxation system. There is no question that income tax is a matter for member states. However, when we apply our income tax laws we cannot do so in a manner which, for example, discriminates against citizens of other EU member states. The reason is that the European Court of Justice states clearly that while member states may have a power, they may not exercise it in an anti-Community manner.

This gives rise to a gap, as it were, although I do not believe it is very large. It is more a hypothetical and theoretical question than a real one. If, for example, during a period in which new competences are given to the Community, a member state takes measures in an area covered by such competences before the Community has legislated, someone could argue that the measures being taken nationally are contrary to the Community's competence and, therefore, the member state in question is in breach of its obligations. I am finding it difficult to come up with a practical example.

Senator Rónán Mullen

I welcome Dr. Hogan. Our most recent discussion about a legal matter was on a judgment by Mr. Justice Gavin Duffy in re Tilson. We have moved on a little.

I want to put my earlier questions to Dr. Hogan. Much of this discussion arose because I asked how, were we to wish it, we might secure the primacy of the values of Irish constitutional fundamental rights in the event of a conflict between these values and decisions emanating from the European institutions. I asked my question through the lens of the European Commission's reasoned opinion issued earlier this year on section 37 of the Employment Equality Act.

Dr. Hogan's colleague in Trinity College Dublin, Professor Gerry Whyte, takes the view that the European Commission is on solid legal ground in arguing that the transposition of the relevant directive into Irish law was overly restrictive in that the provision of an exemption under employment equality legislation, as made possible by the directive which the Irish Government was party to negotiating, was more restrictive than the eventual version, as transposed into Irish law. We were prevented from seeing what would happen because the Commission went away from the problem, so to speak, in the context of the Lisbon treaty.

Taking this case as an example and taking on board Deputy Costello's remarks, there is clearly a certain lack of foreseeability about the extent to which competence is enjoyed because in this case the area of employment equality verges on education.

One also has the issue raised by Mr. Collins of the difficulty with always foreseeing what might be comprehended by a directive in the fullness of time. Mr. Collins gave an example in the area of water waste. In any event, even allowing for the fact that Irish politicians are in a position to negotiate the terms of a directive when it is being passed and the Lisbon treaty may have given us greater scope in so doing, it could still be the case that we might like to ensure we have a filter system that would allow Irish constitutional values to enjoy primacy over whatever comes from Europe in the areas for which the EU institutions have competence. It might be argued, for example, that under the Irish Constitution a religious-run institution should not be limited in terms of how it seeks to protect its ethos to the extent required by a directive.

Likewise, in the Tadao Maruko case, the European Court of Justice ruled in April this year that a person was entitled to his or her dead partner's pension in all EU states which treat homosexual partnerships similar to marriage. I will prescind from the merits of the issue involved in the case. Here again we have a situation where, while people would not expect the European institutions to enjoy competence in the area of marriage and family life, a decision relating to pensions could be seen, domestically, as interfering. To what extent could we establish a filter or zone of protection to allow the Constitution to be free of this?

Dr. Cahill presented an interesting argument and I hope my understanding of it does not misrepresent her. She says the way we have made possible European legislation under Article 29 does not take from the fact that in the event of a conflict, Irish constitutional values would enjoy primacy. She says that is the true reading. Therefore, she may not necessarily disagree with Mr. Collins when he says it would be very unlikely that the courts would take that reading of the article. Is it possible we could apply the 1980s Ronald Reagan principle — trust, but verify? If Dr. Hogan was to seek to verify this position, would it be possible to create a mechanism, perhaps in the way we would amend the Constitution, to provide for the supremacy of Irish constitutional values as contained in our fundamental rights articles, or such ones as we would choose, without alienating or going back on the general principle of the application of EU law in Ireland by dint of our membership of the European Union?

Dr. Gerard Hogan

I will try to deal with that question. On the point relating to section 37, the Commission would work on the basis of whether, according to the Commission legal service, there had been a valid transposition of the equality directive. That would depend on the interpretation of the legislation. The issue arises at a legislative level, both at directive and Irish transposition level, but does not engage the constitutional cum treaty issues about which Senator Mullen spoke.

The Senator posed the question of the potential influence of the rulings of the European Court of Justice in areas such as pensions and how this might impact, directly or indirectly, on issues such as the status of marriage and so on. I remind the sub-committee that irrespective of the European Court of Justice, another European court, the European Court of Human Rights in Strasbourg does this. Therefore, it seems we will have a trend in the long term that the European Court of Human Rights will make rulings on these issues. It has already made rulings on aspects of marriage and family life and does so all the time. We must respect this.

The Senator asked whether it was possible to construct a system, like a domestic Maginot line, that would stop decisions of the European Court of Justice in, for example, family law areas. I suppose that would be possible, but it would probably require some form of further treaty amendment. The United Kingdom and Poland had a protocol of sorts with regard to the opt-out from the charter. If we were to go down that line, we would need a special protocol involving some kind of treaty amendment.

One possibility would be to say there would be a declaration, but this would depend on whether the other 26 countries would agree. If they did, this could, in the first instance, be done by means of a solemn declaration, with a commitment that it would then be transposed into an amendment of the treaty when the next opportunity for an amendment of the treaty arose. That is likely to be the Croatian accession, at some stage in 2010 or 2011, if Iceland does not join before it. Something along those lines might be possible, but I will not express a view as to whether it would be a good or bad idea. The Senator's question was to the effect of whether it would be legally possible. It would only be legally possible in so far as the other member states were willing to do so, but anything along those lines would require a further treaty amendment.

I agree with Mr. Collins that the referendum result has resulted in a disastrous loss of influence and standing for Ireland at European level. I could not emphasise that sufficiently. We need to do something about it. It would be possible to construct something like the aforesaid provision and the way to do so would be to secure a solemn declaration, in the first instance, that would then be transposed into a commitment to give us a protocol at the next opportunity for treaty amendment. The other member states will not wait for us and renegotiate the Lisbon treaty. The best we can possibly hope for is to have a political commitment in the shape of a solemn declaration. If that needed to be transposed into an amendment to the treaty to cater for whatever we are looking for, be it a Commissioner or a provision in respect of the charter or taxation, this could only be done at a later stage.

Chairman

I have been very generous to speakers in allowing them to make their points. Many issues have arisen in recent weeks that are being clarified in this session. I sense we are moving forward regarding them.

I ask the remaining participants, Deputy Thomas Byrne and Senator Mullen, to be brief because we still have private business to conduct.

Deputy Thomas Byrne

Mine is a glib point. Would what Dr. Hogan is suggesting involve the risk that Croatian or Icelandic accession would necessitate a referendum in Ireland?

Dr. Gerard Hogan

No. Politically and legally we cannot ratify the Lisbon treaty in its current form without a referendum. However, let us say the view was taken that the Irish would ratify the treaty if A, B and C were done for them, I offer no views as to what A, B and C might be but they might include provisions in respect of a Commissioner or taxation. Under such circumstances, we would go to our partners and ask for a solemn commitment, by means of a solemn declaration, that if we ratified the treaty in its present form, they in turn would amend the other Community treaties at the next opportunity, be it during Croatian accession or otherwise. It would be possible to go to the people with a referendum proposal to ratify the Lisbon treaty on the basis of a solemn declaration and have a system, as in the Good Friday Agreement, whereby we would vote for the proposal in the knowledge that there would be a solemn declaration that the Lisbon treaty would be amended in respect of X, Y and Z at a convenient opportunity. That would be triggered without the necessity of a further referendum.

Deputy Thomas Byrne

Is Dr. Hogan confident that the amendments could be made without a referendum?

Dr. Gerard Hogan

It would be legally possible to construct a system that would give prospective assent to the changes without necessitating a further referendum.

Senator Rónán Mullen

I thank Dr. Hogan for his very comprehensive response to my questions. He mentioned the European Court of Human Rights and related jurisprudence. The key difference is that this has been incorporated at a sub-constitutional level in the Irish context. In many ways, I am asking whether the same result could be achieved through the body of European law and the decisions of European courts in so far as fundamental rights clauses in our Constitution are concerned.

On section 37 and perhaps also the Tadao Maruko case, Dr. Hogan made the point that it is more a question of Community law and interpretation. Surely there might come a point at which the European Court of Justice will rule that we are required to interpret the directive in a way that might not be harmonious with our constitutional values. Is it possible to imagine a mechanism that would return the final say to the Irish courts on such an issue in so far as our constitutional values are concerned?

Dr. Gerard Hogan

Something like that would be too complicated and unworkable. The best one could hope for in the section 37 context is that somebody would say, "Yes, the directive was improperly transposed but, by the way, the directive is invalid because it trenches on the guarantees of freedom of religion in Article 9 of the European Convention of Human Rights, which the European Union-post Lisbon, will be obliged to respect." I could well foresee something like that happening. However, if one wants to get out of that area, certainly at a Luxembourg level then opting out of the charter or some mechanism vis-à-vis the charter might be a way forward. The problem is we do not know how the charter will be interpreted. It could easily turn out to be a total damp squib.

Chairman

I thank Dr. Hogan for that. I have been conscious that as many members of the panel have signalled to speak as members of the sub-committee, which is a good sign. If members have any final points, given their patience, I will provide them with an opportunity to do so.

Dr. Diarmuid Rossa Phelan

I have a brief, specific point regarding Senator de Búrca's question. There is an existing mechanism. I could wear the t-shirt, "Been there, done that, been refused the reference", regarding what can happen in the Supreme Court in an environmental case. It is possible for the individual refused to start an action again suing the state in the national courts because of the alleged default of its judiciary and to seek to have that referred. That would also be Article 234. It is a possibility. It is a little nuanced and it might run into some difficulty but it exists. To some extent it is within the control of the person aggrieved.

I agree generally with what Dr. Hogan has to say but I completely disagree on one point. The prospect of putting a treaty, which has been refused, back in its present form with a political commitment in the future to change it, is daft. Politically, it is a matter for the sub-committee to assess the likelihood of that succeeding. One can readily see how easily arguments could be marshalled against that suggestion.

As to the second point about the loss of influence, I cannot comment on that as it is a matter of politics or political science. It seems to me to fundamentally miss a certain point, namely, we may lose influence among certain bodies in the way things are currently constructed but we may have gained influence with another body of persons and opinion who believe things should not proceed. There is a risk in the way the matter is being treated that there is a loss of influence in both camps. It seems to me that the overriding issue is whether the people have an influence and the people have expressed their view. If that is not going to be influential then there is a more fundamental problem.

Dr. Maria Cahill

Perhaps I could just pick up on the final part of Dr. Phelan's comments. I consider also that this is not a uniquely Irish crisis. We know from the opinion polls conducted in five or six member states prior to their governments accepting the Lisbon treaty that they did not want the Lisbon treaty and that perhaps then the implication is that the governments did not allow people to vote on it because they knew the answer would be "No". More than it being an Irish crisis it is a European crisis and, again, a reminder of the lag or gap between what the European institutions are doing and how the people perceive their own involvement in Europe and in the common project of forging this alliance between our peoples.

Mr. Anthony M. Collins

I think a very important issue arises. I am here in my legal capacity and I am addressing the sub-committee as such. I could hold forth at length on my political views about the matter. From a legal perspective there is a very serious problem about the Lisbon treaty, not because of the Lisbon treaty. Dr. Phelan says the Lisbon treaty is gone and that is it. The difficulty is that the world is complex. We know how complex it is and we know also what happens when people do not understand what is going on. What is happening at the moment is that if an attempt is not made by the Lisbon treaty or some other mechanism to try to let Europe develop in a manner that allows it to meet the actual challenges it has to deal with in the future, Europe is going to meet the challenges anyway.

If an attempt is not made by the Lisbon treaty or some other mechanism to try to let Europe develop in a manner that allows it to meet the challenges it has to deal with in the future, Europe will meet them by means of a fractured and complicated legal system, with opt-outs, opt-ins and all this type of carry-on. It would have been much simpler had the European Community grown and absorbed all the powers the European Union had, but that could not happen politically and so we now have three pillars. Now we put the pillars back in together again, but then we have opt-outs. This is all to try to accommodate the member states, including Ireland, because we have had our own difficulties. We have benefited from the multi-speed Europe.

Europe can remain multi-speed up to a point, and we have an opt-out for justice and home affairs, but on certain matters Europe will have to move forward. Those states that see a political need to move forward will do so. The legal mechanisms will be found for doing that, and we shall be on the outside. It will not be just as in the Metock case, but rather in some other important case. In the event, the court will say the difficulty with what the Irish Government is saying is that it is regulated in principle by something else over which it has no legal influence. To deny that is to live, with respect, in cloud-cuckoo-land.

Chairman

On that note I thank all our guests for coming in. It has been a very helpful contribution to the work we are doing. We regret that in some cases we had to invite people in at late notice, but that is just a feature of how speedily we have been asked to do our work. I am very grateful to our guests for the grace with which they responded to our invitation and the manner in which they conducted themselves this evening.

The sub-committee went into private session at 6.27 p.m. and adjourned at 6.55 p.m. until 11 a.m. on Tuesday, 4 November 2008.