JOINT COMMITTEE ON EUROPEAN AFFAIRS (Sub-Committee on Ireland's Future in the European Union) debate -
Wednesday, 12 Nov 2008

Ireland’s Future Approach to EU Policy: Discussion.

Chairman

I welcome our guests to the start of today's business. Before we begin our work I will give some background information on the sub-committee and why we have invited the delegates to attend. The sub-committee was set up to consider Ireland's future in the European Union in light of the Lisbon referendum result. We were given four terms of reference to do the work and we have split them into work modules. We have spent recent weeks working our way through this and are due to publish a report by the end of November.

At the moment we are focusing on Ireland's future approach to EU policy areas, particularly regarding economic and financial policy. Arising out of this, we hope to have a better idea of what will be our national interest in those areas and how we can better articulate that national interest within the European Union. My colleagues and I have put together a list of invitees who may be able to assist us understand these issues and are all agreed it was important to hear the views of the ESRI on this topic. I am grateful to our guests for attending.

In terms of how we are organising our business, each guest or organisation will have ten minutes to make a presentation following which we will open up the discussion with each group having ten minutes to put questions to Professor FitzGerald and Professor Ruane. Thereafter, anybody who has not had an opportunity to put questions will be given six minutes to do so.

Before I begin, I must inform our guests that while members of the sub-committee have absolute privilege, this privilege does not apply to witnesses appearing before it. I remind members of the parliamentary practice that they should not comment on, criticise or make charges against any person outside the Houses, or an official either by name or in such a way as to make him or her identifiable.

I now invite Professor FitzGerald and Professor Ruane to make their presentation and inform them that I will interrupt them when they have one minute remaining to let them know where they stand.

Professor Frances Ruane

On a point of clarification, do we have ten minutes each to make a presentation or ten minutes between us?

Chairman

How have you organised your time?

Professor Frances Ruane

We will require only ten minutes between us for the presentation.

Chairman

I will ensure that everybody has ample time to make their points during the question and answer session.

Professor Frances Ruane

I have brought with me a number of Powerpoint slides. I apologise for not having further time to prepare but I was away for much of last week.

In the first slide, I have identified five areas wherein I believe policy will be particularly important for Ireland in a European context. An area I have not listed but which was discussed previously with the sub-committee by my colleague, Mr. Colin Barrett, is migration, an area in which we need to be proactive in terms of policy.

The second slide deals with taxation which is not necessarily the most important issue but is important for us in a European context. We have, and must continue to be, consistent in our approach to taxation and have done this with the low corporate tax rate, though it is not particularly popular. However, within a European context people see this as being open and transparent, which is good. In addition, it is well validated in economic theory that mobile factors such as capital and high-skilled labour should have low tax rates. We have a solid basis on which to ground and maintain that particular policy stance.

There are two areas where taxation might become an issue in the future and on which we may wish to form a view. The first is mobility taxes on human capital, which is high-skilled workers. Many countries in Europe are developing particular policies to take account of the mobility of high-skilled labour. The second is innovation and the way in which it translates and transfers across countries in terms of taxation.

The third slide deals with globalisation. I believe globalisation will continue to grow but that stops and starts in the current global position will slow things down a little. We have a significant interest in globalisation continuing because not alone are we well grounded in Europe but the nature of our production and the manner in which the economy is growing means we have global and not only European interests in terms of trade. It is important for us to ensure Europe does not become overly regional and maintains an outward global focus.

The fourth slide deals with service trade which is particularly important for us in terms of how our economy is structured. It is the direction in which we are most likely to move into the future. There is a great deal of complementarity between the high-tech manufacturing we have built up and the service sector that links in with it, particularly on the software side in terms of engineering services and related activities, which can be transferred over the Internet rather than by human contact. The nature of the Irish personality and of our history within a global context puts us in a particularly good position to exploit the growth in services trade, which is obviously what we want from Europe.

The fifth slide refers briefly to energy and the environment. I draw the attention of members to one particular point in respect of this important area. It is important the policy designs are size sensitive. Much of European policy formulation is created within the large countries. Issues arise in regard to large markets which do not translate easily into smaller markets. In a policy sense, it is in Ireland's interests to be aware of that size issue. However, there are many more countries in Europe that are small in scale.

That leads me to my last slide and the question of timescale. One of the difficulties associated with the global recession is it tends to truncate thinking into being relatively short-term. Ireland has had very positive experiences of thinking long term as, for example, with the national development plans and the Structural Funds from the European Union. Consequently, although I started with taxation which often is immediate, when considering policies, it is important not to be overly focused on what will happen in the short term but to adopt a longer term horizon. As well as thinking about strategies, as a country we must work out who will be our future allies in many of these areas. Many of them will come from smaller countries.

Professor John FitzGerald

For the first decade after Ireland joined the European Union our overriding economic interest was the success of Irish agriculture and as such, priority was given to that issue. In the second decade, during the late 1980s, we moved on with priority being given to the Structural Funds. Having hidden under a French umbrella in respect of the Common Agricultural Policy, being allied to Germany and having German support with regard to the Structural Funds was important to us. More recently, taxation, corporation tax in particular, has been given pre-eminence and we have hidden under a British umbrella. In the future, as my colleague Professor Ruane has noted, we will have to think more broadly. Ireland's interests do not simply pertain to taxation. While corporation tax, obviously, is an important issue for us, other matters will be more important.

As for the changed context, Professor Ruane has discussed the issue of free trade, our interest in globalisation and the market services sector which we need to be successful in Europe and throughout the world. We need free trade and the successful development of the EU economy. The economy will not recover from the current recession until the EU economy does. Consequently, its success is of vital interest to us. There should be a coherent policy on financial stability. The promotion of free trade, especially in services, both within the European Union and the rest of the world, is of crucial importance to us. It will be important to us also that the European Union have an economically efficient policy on global warming. Our interests are changing. As Professor Ruane noted, we must have allies and friends in Europe who will support us in achieving our policy objectives.

Ireland faces a problem that is being tackled by civil servants and of which I have become conscious since I spent time last week in Brussels, namely, that Ireland is now perceived as rich and selfish and that we have no friends. One meets people from other research institutes in Europe with whom one has been friendly for the past 15 or 20 years. However, one gets a feeling that Ireland does not have friends and that people score points. While that may be unfair, we have a problem and are beginning to see the consequences. I refer to the extension of the bank guarantee scheme. Economists generally consider that the Government's solution to the banking crisis was probably not the best one. While it was necessary to do something and what it did made a significant contribution, there were probably better solutions. While the Irish solution was not ideal, the Commission's response was wholly inappropriate on competition grounds, in that during the previous week people in Dublin had been advocating putting one's money in Northern Rock because it was guaranteed by the British Government. The Commission was not justified in the action it took. However, the reason it took such action was Ireland had no friends because of decisions previously taken. As a result, we ended up being obliged to offer an additional guarantee worth €40 billion, or one quarter of GNP, to non-resident banks. Thankfully, thanks to British Government action, we may not be obliged to step up to the mark in this regard. However, this constitutes one example which shows we do not have allies and that a highly significant potential cost was imposed on the economy as a result of their absence.

The second matter about which I am concerned relates to the fact that, for the future, the Irish financial system has a significant net foreign liability. Irish banks have borrowed money outside Ireland to lend to Irish households. We all know about the problems that exist. If any uncertainty is created in respect of Ireland's future position in Europe, this could be very damaging to us.

The third matter involves foreign direct investment. When Ireland voted "No" in the referendum on the Nice treaty, the Scottish Development Authority and others in Europe stated that the country was only a semi-detached member of the EU. This could have had potential consequences. It is not reality but rather the perception which may be important. We have seen this in financial markets and it could prove to be the case elsewhere. We are facing serious problems in Europe and these will have economic consequences. The first of these relates to the extension of the bank guarantee.

Chairman

I thank Professor Ruane and Professor FitzGerald for their contributions. I call on Deputy Michael McGrath to pose his questions.

Deputy Michael McGrath

I wish to share time with Deputy Flynn. I thank Professor Ruane and Professor FitzGerald for their comments in respect of the issues the sub-committee is considering.

Professor Ruane referred to the importance of globalisation and the fact that Ireland is operating in a global economy. Will she comment on the world trade agreement and the negotiations that broke down? Will she indicate whether she is of the view that this matter will be revisited in the immediate future? Will Professor Ruane comment on the importance of Ireland within the European Union and on the Union, in a collective sense, fostering stronger economic ties with developing countries such as China, Brazil, Russia and Saudi Arabia? Will she elaborate further on the fact that Ireland is operating in a truly global economic environment, that it must fulfil its role within the EU and that the latter must enter into agreements with the countries to which I refer in order to enhance member states' economic performance?

Professor FitzGerald made a number of interesting points and stated that Ireland suffered a significant economic blow as a result of its failure to pass the Lisbon treaty. He is correct in that regard. Many of the witnesses who already appeared before the sub-committee are of the view that the full effects of that blow are yet to be felt because there is an expectation in the corporate sector that this matter will be resolved, either by way of a second referendum or another mechanism. These individuals also indicated that the extent of negative feeling towards Ireland has yet to be fully exposed. Does Professor FitzGerald concur with that view? Is it his opinion that the examples to which he referred will be highlighted to a much greater degree in the coming period if Ireland is on the second tier in Europe?

Will Professor FitzGerald clarify the point he made on the potential cost to Ireland with regard to the net foreign liability of the banking system? The banks borrowed heavily in the international market but will Professor FitzGerald indicate what the cost to which he refers will be? Would that cost arise in the context of accessing further liquidity in the international market? Would the loss of goodwill damage access to such liquidity?

Deputy Beverley Flynn

I welcome our guests and thank them for their presentation. I wish to comment on the bank guarantee. In recent weeks we have been trying to focus on what has been the real loss to Ireland as a result of our failure to pass the Lisbon treaty. This is a concrete example. Representatives from Enterprise Ireland and IDA Ireland who came before the sub-committee stated that there would be no immediate impact on foreign direct investment but that the perception might be that there could eventually be an impact.

Is it not correct that when the Government informed the Commission it was having financial difficulties, it was told to get its own house in order? Is it not also the case that when the bank guarantee scheme was introduced, the Commission intervened in order to have it altered? What could the Government have done differently at EU level in order to avoid bringing additional liability upon the country?

Professor Ruane referred to globalisation and the trend towards regionalism, and whether these will be good or bad for Ireland. Will she develop this point in terms of the development of the European Union and its impact on Ireland if the Lisbon treaty is not ratified, given that some 40% of our exports are in services?

Professor John FitzGerald

I agree with Deputy McGrath that we have not yet seen problems. However, if the matter is not resolved and we remain friendless, there will be consequences.

My point on net foreign liability in the banking system is that Irish banks must raise large sums in financial markets. Being unable to do so caused the Government to step in and provide a guarantee. If there is uncertainty about Ireland's position, a high price will be paid in the financial markets. However, there is no such uncertainty and there will not be if the matter is resolved. Anything that gives rise to problems in terms of the perception of Ireland's position in the European Union will make it difficult for Irish banks to raise money, which they must do to fund the economy.

Deputy Michael McGrath

Would they pay a higher rate?

Professor John FitzGerald

Yes. In 1992, we saw the effect of uncertainty about the Irish pound.

To answer Deputy Flynn's question on what we could have done differently, it should have been clear the previous weekend that there was a problem, at which point the Government should have telephoned the Commission to ask for a solution. It had none; therefore, the Government needed to find its own. It may not have been the best solution, but the Government needed to act.

The Commission was unjustified in its actions because the United Kingdom in nationalising Northern Rock had provided a 100% guarantee to one bank operating in both the UK and Irish markets. During the preceding week two people told me that they were considering moving their money to Northern Rock because it had a 100% guarantee. The interference with competition had occurred by the wholly justified and correct behaviour of the British Government in nationalising Northern Rock and, subsequently, Bradford and Bingley. It was not that the British had acted in the wrong manner, but that competition had been interfered with. Had there not been a financial crisis due to people's mistrust of banks, there would not have been a competition issue and no one would have raised questions about a guarantee of bank deposits. The matter could have been handled better had we telephoned the Commission at the weekend to warn it of our intent. Although we had failed to do so, the Commission's behaviour was over the top.

Deputy Beverley Flynn

Since then, 15 or 16 countries have introduced various bank guarantee schemes, the majority of which are more expansive than ours. Has the Commission intervened in the strategies of these countries?

Professor John FitzGerald

The only significant instance was the case of Commerzbank last week. The Commission believed the terms of the recapitalisation were too generous. Last week I attended a conference in Brussels at which it was suggested it would not be in the interests of shareholders in European banks to accept government guarantees. Instead, they would internally recapitalise in the long term, but this would mess up European and world economies. It would be in European governments' interests to have the banks take the money and provide credit for businesses and households. I am not an expert, but criticisms of the German Government could be wrong. I am unaware of any Commission action in respect of the other deposit guarantees identified by Deputy Flynn.

Deputy Beverley Flynn

Has another country been required to guarantee funds for a foreign bank or is Ireland the only such country?

Professor John FitzGerald

As far as I am aware, yes. It has been policy to have each country recapitalise its own banks, which raises an issue in the case of Switzerland. Iceland was unable to recapitalise its banks because its liabilities were too great. This is also a concern for Switzerland, the banks in which are large compared to the size of its economy. While there does not appear to be a problem, Switzerland would be unable to recapitalise if there was. The principle is that countries deal with their own banks.

Deputy Beverley Flynn

Professor FitzGerald referred to the cost of borrowing. Is Ireland getting as competitive a rate in international borrowing markets as any other country?

Professor John FitzGerald

Owing to the guarantee, the banks are getting favourable rates. The Irish Government, however, is not because the premium the Irish taxpayer is now paying on the Deutschemark has risen significantly. Much of that is due to the problems with the Irish banking system, but it is not helped if the State has to extend its guarantee by €40 billion to cover foreign banks. It is difficult to work out the precise cost of that.

Deputy Beverley Flynn

Does the fact that the Irish guarantee is only for two years put us at a disadvantage, given that many other countries have given guarantees of up to five years? Is our guarantee too restrictive and is there a case to be made for extending it further?

Professor John FitzGerald

No. The British solution is a better one and the Irish Government will probably have to go down the British route eventually. In that context, the guarantee will be less important than recapitalisation and sorting out the banking system here. There is further work to be done in that regard.

Chairman

I will hand over to Porfessor Ruane before calling on Deputy Costello.

Professor Frances Ruane

With regard to the first question and the globalisation issue, over the past 20 years the EU was engaged in a process of deepening integration, based on the development of the Single Market. However, when the Berlin Wall came down, China and India suddenly re-entered global trade. There is a sense that regardless of the model that Mr. Delors and others had in mind, the environment has changed dramatically. That places natural stresses on Europe and its interests, in terms of further integration, which links in with Deputy Flynn's question on regionalism. There is a two-way tension at play and much more is happening now than was planned for at the time of the start of the integration process. That is not to say it is a bad thing, but the context is certainly very different. I always liken it to the idea of people setting off to climb the Alps and half way up discovering they are climbing the Himalayas. The terrain is much trickier now.

As a small country, with a long history of being linked into the American market, through FDI, we probably have a stronger sense of globalisation than other countries. Our ratio of trade to GDP is also much higher than any other EU country. We have a consciousness of globalisation which makes us a potential leader in terms of the thinking, rather than a lagger. The present economic situation is tending to lead to a focus on regionalism and protectionism but Ireland is better served by the continuation of the globalisation process, with Europe very much a part of that.

The Deputy also asked about the WTO. A great deal depends on what comes out of the United States. There is a big difference between the Democrats in Opposition and the Democrats in power. This issue is being widely discussed at the moment. I saw a broadcast by Amartya Sen on the television recently, aimed at an Indian audience, where he stressed the importance of giving the United States time to get itself in order. The situation is enormously uncertain at the moment.

Europe must adopt a very strong position regarding its trade policy within the WTO. It must recognise that it is now a much bigger entity and can potentially play a much larger role as a driver of change. Obviously increased competition from the rest of the world affects different lobby groups and economic interests within countries but in the longer term, it makes sense for Ireland, within a European context, for globalisation to continue.

The Deputy referred to perceptions of the Irish in Europe. I attended a conference last week where it was argued that Ireland's attitude to immigration within Europe was very positive. I met several people from Germany and Italy who admired the fact that Ireland accepted immigrants from eastern European countries, where other member states kept them out. How the Irish are perceived within Europe is very important and informs whether other member states go after us, hammer and tongs, as it were, or support us. The banking situation is a case in point in that regard.

I hope I have addressed all of the Deputy's questions.

Deputy Joe Costello

I thank the delegates for coming in and sharing their words of wisdom. It has been argued that there is a perception in Europe that Ireland has become rich and selfish and, as a result, it has fewer allies and friends in the EU. Professor Ruane mentioned the fact that we opened our doors to the ten eastern European accession countries in 2004 and this ensured we retained allies there. With the Czech President here, one wonders what side of the coin we are discussing when we speak of allies. She also mentioned that immediately after the Lisbon treaty referendum the Scottish industrial development authority decided we were somewhat semi-detached and that a good case could be made for it to try to attract some foreign direct investment. Was this a once-off or has it been replicated in other countries?

Both delegates referred to the importance of the EU's economy. Do we need the EU's markets and global investment? Our exports come from foreign direct investment but, by and large, our markets are in the EU. It is difficult to get an exact figure on the extent of foreign direct investment here. To what extent does it contribute to our exports? We were told that 85% of our exported manufactured goods come from foreign direct investment and this seems colossal. However, we do not know the quantity of services traded on the Internet and so on. Do we have realistic figures from the Economic and Social Research Institute, ESRI, on the totality of production through foreign direct investment? How is this balanced with the totality of Irish products going to places like the United States? Is there an imbalance in this respect, because we hear all about input but not about the other side of the coin?

It was suggested that the European Union is coming down heavily on us because of the manner in which Ireland established its guarantee. Is this because it was done without consultation and because the European Union approach is not a guarantee but capitalisation? Ireland has not embarked on capitalisation and has not, therefore, embarked on a collective approach to the matter. The EU also came down heavily on us because of the Growth and Stability Pact, which we breached by reaching a level of 6.5%. Is the problem that Ireland has moved in a manner the EU finds erratic? The EU also believes that we moved in the wrong direction on the Lisbon treaty and on financial matters.

I wish to ask about the human side of the coin: employment, unemployment and Ireland being out of line with the Lisbon Agenda. We detected conflict between the pillars of the free movement of labour and the free movement of capital, which came up in the Lisbon treaty. Can the delegates comment on the current unemployment situation in Ireland and the difficulty we face in addressing the race to the bottom?

Professor Frances Ruane

To go back briefly to the foreign direct investment issue, the volume of manufacturing export sales related to foreign direct investment is very high. That is not necessarily the same as net value added in manufacturing. There is no doubt that if one compares data across European countries our data on foreign direct investment is better because it goes back further than everyone else's. Our position is unique and outstanding in this regard and it allowed us to divert our export market away from the UK and towards Europe. At this point, much of our foreign direct investment output is global.

People speak about global value chains of which Ireland is very much a part. Some of the American companies here produce product lines not alone for the European market but for the world market. We are linked in a particular way to the global economy on the investment and trade sides. We are not getting a great deal of foreign direct investment from Europe although we did historically. Much of what we now get is in respect of pharmaceuticals. We are, as correctly pointed out, more market-linked to Europe. The services side is more global because electronic products can be sold anywhere and not only to the European market.

An issue for us in terms of policy will be foreign direct investment and outward direct investment. I do not know if the sub-committee has invited in representatives from the IDA and Enterprise Ireland or whether the following issue has been discussed. It seems to me that Ireland needs to think about what is its outward direct investment policy. While previously we had an emigration policy, we are now grappling with an immigration policy. Also, we had an inward FDI policy and are unique in the world in that we now need to consider an outward FDI policy, which depends on double tax agreements and our relationships with other countries, which is quite significant.

We are strongly linked to Europe on the trade side but not only through those markets. We get what are called high value to volume ratio products. This is the characteristic of the Irish economy. We got in on this early because we are an island and it did not make sense to bring in heavy physical goods and then send them out by boat. As an economy, we are more skewed towards high value to volume ratio products and services is the ultimate in this regard because all of the value is being sent out over the wires. We have, in a European context, a strong incentive to ensure strong development of the service sector through the WTO and the general European process. This is wherein our interests lie.

Professor John FitzGerald

On the banks guarantee scheme, the EU was understandably miffed that we had not consulted it before this was introduced. We should have informed it the weekend before the scheme was introduced that we had a crisis and required a solution within 24 hours and should have asked for its recommendation in this regard. However, the recapitalisation model developed by the British Government was not put in place until the following week which means even if we had asked for a solution it would not have been able to come up with one. While in terms of consultation there are faults on both sides, no obvious model had at that stage been put in place. Economists might say we could have done better but we certainly could have done much worse.

On unemployment, this is a broader issue in terms of how the Irish economy behaves. We would see it as being fairly flexible. During the previous major downturn in 2002 normal wage rates fell in certain key sectors such as computers where people had priced themselves into jobs. We hope and expect that action in the private sector will allow us to price ourselves back into jobs. As a result of unwise policy during the past five to seven years we have allowed the construction sector to squeeze out the rest of the economy, rather like a tumour. This has damaged other organs and we have lost a great deal of exporting firms which we must grow again if we are to recover. It will take us a while to do so.

Chairman

Does Deputy Costello have any other points he wishes to raise?

Deputy Joe Costello

Perhaps Professor FitzGerald might comment on employment and the fact that we are currently haemorrhaging jobs and not only in the construction sector. Is it because the construction has squeezed out every other sector that we are uncompetitive? How do we get back into what is at the heart of European policy, namely, growth and employment, an issue that was at the heart of Lisbon?

Professor John FitzGerald

Problems in the labour market are substantially of our own making. From now on, as a result of global problems, the construction sector will be pushed down further as will the economy as a whole. There is much talk of no growth, or a fall in world trade next year. Even if one is competitive, one will encounter serious problems.

If one considers the German economy which has priced itself back into markets, albeit slowly, it faces major problems next year. Everyone will face major problems as a consequence. While the world must get going, it will be 2010 before it does so. Moreover, the Government, in the stability programme published at the same time as the next budget, indicated next year's budget will be much tougher than that for this year, and we will be obliged to devote significant resources during the recovery period to rebuilding the public finances. This means the recovery in Ireland could be pushed back somewhat further. It will be led by the rest of the world through growth in world trade. We will have begun to price ourselves back into markets. I hope firms which export services and goods will see an upturn in demand in the second half of next year and 2010. While this will begin the recovery, it may be slower to happen in Ireland. However, the recovery will happen. When we published our medium-term forecast last May, we viewed the economy as having the potential to grow during the next decade at approximately 3.5% per year. At this stage, we would not necessarily change that forecast. Ireland has a future.

Professor Frances Ruane

The striking point is that it takes much effort to win market share which one loses very quickly when one becomes uncompetitive. That is a serious issue. However, the private sector in Ireland and the exporting sector, in particular, are realistic about what must be done. They recognise this point. The structure of wage deals within the private sector, in which pay is based on bonuses and one is paid more or receives dividends when times are good, probably is more flexible than it was in the 1980s. One can afford to have a certain amount of optimism that rather than shedding jobs, we will end up with people taking slightly lower remuneration packages to facilitate holding onto such jobs and winning back market share.

The other difference with the 1980s, when we last had a serious dip, is there are more entrepreneurial skills in the economy. This is something about which one can have a certain amount of optimism. People have experience of working in good markets. Admittedly, they have not experienced a downturn. One of the biggest difficulties for young Irish executives in companies who are aged between 25 and 40 years is that they have not seen a downturn. While they have yet to gain this experience, they have had the experience of growing and spreading into new markets and taking on new challenges. We can afford to be optimistic in that regard.

Deputy Joe Costello

I understand the ESRI's figures are that we have lost 95,000 jobs in the past 12 months and that we will haemorrhage another 100,000 within the next 12 months. Does the ESRI still stand over these figures?

Professor John FitzGerald

Like everyone else, we will revise our forecasts. As for the meeting I attended in Brussels, I returned significantly more depressed.

Deputy Joe Costello

It is going to be worse.

Professor John FitzGerald

We must assess the situation. As people probably over-react to recent events, perhaps in the cool light of day we may not wish to change our figures. However, I cannot be certain.

Chairman

Before I hand over to other colleagues who wish to contribute, I have a few questions, the first of which is addressed to Professor FitzGerald. One matter with which the sub-committee has been grappling is to try to identify consequences and costs or benefits that flowed from the Lisbon treaty referendum result. Significantly, Professor FitzGerald's contribution has identified a potential real cost to the economy. It constitutes a chilling observation to put before members. I wish to ensure I fully understand the line of reasoning behind it because it stands out, both in respect of the size of the sum involved — €40 billion — and the manner in which Professor FitzGerald has outlined how it has come about. To understand this consequence, I wish to check the chain of events outlined. When the United Kingdom put in place its plan, the Commission was silent but when we put ours in place the following week, it made comments, because of which we were obliged to extend the guarantee to non-Irish owned banks which, in turn, created a potential cost to us of €40 billion. In effect, Professor FitzGerald is stating the result of the referendum on the Lisbon treaty created an environment that encouraged the Commission to intervene but that it did not intervene in the case of other member states which had put in place similar plans. Is the summary I have attempted to make in respect of his comments correct or does he wish to add anything?

Professor John FitzGerald

It is correct with one exception. It is not a potential cost of €40 billion. The €400 billion guarantee on the Irish banking system will never be called in to the tune of that amount. At the very worst, the amount involved would be a fraction of that figure. However, the fact that the guarantee had to be extended and that the Government did not believe itself to be in a position to inform the Commission that its actions were unjustified and merely accepted what occurred is indicative of a problem.

Chairman

I thank Professor FitzGerald for clarifying the position. As stated, the outlining of a contingent liability of that amount is a chilling indication of where the country could find itself in the aftermath of the result of the referendum on the Lisbon treaty. The way Professor FitzGerald outlined how it had come about will be of great assistance to us in our work.

Professor Ruane has clearly outlined the fact that Ireland's future prosperity lies in its continuing to successfully embed itself in the process of globalisation. Will she indicate what would be the economic consequences if Ireland were not to ratify the Lisbon treaty and other members states proceed to ratify, in some form, elements of the treaty? What would be the effect of such an eventuality on our economic prosperity?

If the Lisbon treaty had been ratified, would the Commission's comments on our performance in the context of the Stability and Growth Pact and its reaction to the banking decisions we took have been different? Will Professor FitzGerald elaborate on his comments in respect of the Stability and Growth Pact?

Deputy Flynn has inquired as to whether any other country has been obliged to extend a guarantee to banks not based within its national boundaries. I am not sure whether our guests provided a reply to that question but, if not, perhaps they could do so now. Is Ireland alone in having to extend its guarantee or have other countries been obliged to do so?

Will Professor Ruane commence by remarking on the effect on our economic interests if we were not to ratify the Lisbon treaty but other member states proceed to ratify certain elements of it?

Professor Frances Ruane

I am not sufficiently well versed in these matters to indicate what might be the precise outcome. If, however, our failure to ratify would have a net effect of reducing our ability to trade into and integrate further with the European Union, this would have an enormous impact on the economy. One of the characteristics of Irish business is that it is obliged to export at a very early stage in the production process. Once, therefore, a niche, high-tech or sophisticated product or service is developed or produced, the local market is extremely small and there is a need to export at an early stage. Failure to ratify would not only just affect the patterns relating to the larger companies already in existence, it would also stunt the growth and development of indigenous industries.

Chairman

How would that happen?

Professor Frances Ruane

As stated, this is a piece of the jigsaw about which the Chairman knows much more than I. If the net effect of our failure to ratify was that it impeded our ability to sell into markets — because we had become more semi-detached from the European Union and other member states — this would have a negative effect on businesses in the context of their core ability to sell products. This would be particularly relevant with regard to foreign direct investment. I am not sufficiently acquainted with the sequence of events, but Professor FitzGerald might have something to say in that regard.

Professor John FitzGerald

The bank issue is interesting because we would never have predicted that it would be a problem, even one month beforehand. One needs allies when there are unforeseen problems. The rule of law applies in certain areas in Europe, irrespective of whether one votes "Yes" or "No", but it is in these areas in which the rule of law has not been defined that problems may arise.

Regarding the Stability and Growth Pact, the Minister for Finance wrote in an article in the The Irish Times today that he was just as concerned as the Commission, if not more so, about Irish fiscal policy. Instead of over-reacting to our breach, the Commission has acted in a balanced way. Given that the extent to which the budget deficit has deteriorated is a European record, the Commission’s concerns are unsurprising, but it has been measured in its response.

While I am unaware of other countries offering similar bank guarantees, the British Government, for example, has guaranteed deposits in failed Icelandic banks within Great Britain, but not on the Isle of Man. The United States is the largest example in that the figure of $700 billion, on which Congress had to keep voting until the right answer was given, is applicable to both US and foreign banks. The American Government has bought back some toxic assets from non-US banks. There is no absolute rule but a spectrum. I am unaware of anyone within the European Union giving the same deposit guarantee. The exception is the British Government guarantee applied to Icelandic banks, although this may also have occurred elsewhere.

Chairman

According to Professor FitzGerald, the extended guarantee that we were forced to give, making us unique or placing us in a minority in Europe, was attributable to the Commission's stance arising from the result of the Lisbon treaty referendum.

Professor John FitzGerald

Yes. There would have been a different outcome.

Chairman

I thank Professor FitzGerald. I call Deputy Creighton who will be followed by Senator Prendergast and Deputy McGrath.

Deputy Lucinda Creighton

I apologise for my late arrival and missing the presentations. I do not want to go over ground already covered.

Regarding the European Union's future rather than the Lisbon treaty, I would be interested to learn our guests' opinions on future enlargements of the Union. Coupled with Ireland's increasing cost base due to the policies of the past five to seven years, low cost bases in eastern Europe have created certain fears among Irish employees and businesses since the accession of the relevant countries. Would a future enlargement place more pressure on the economy or should we view it as positive in terms of an expanded marketplace?

Like other members, I know of small to medium enterprises, SMEs, which are struggling to meet operating costs. In recent years the same problems have been faced by international companies based in Ireland. What do our guests believe should be done domestically to make us more competitive and attractive for foreign direct investment? What should occur at European level to assist us in this regard, be it through the Lisbon Agenda or otherwise? Yesterday I read a newspaper article in which someone wrote that every developed country's economy should be treated in the same way as the economy of a developing country. In other words, taking advantage of all available opportunities and constantly upskilling the workforce.

Both witnesses made reference to the importance of investment in education in order to maintain Ireland's attractiveness for foreign direct investment and to help us to compete in the global environment. While I have heard that point made many times, I would like to hear a little more about what it actually means in practical terms. What can we do, as a small island state? Is it better for us to operate in the context of greater European co-operation in terms of education? When one attends meetings of European think-tanks and foundations, one hears constant references to the need to compete with China, India and others and to invest in education. However, I am somewhat sceptical about the ability of a small island like Ireland to do that on its own. The logical conclusion, therefore, is that we should be acting in partnership with our European partners but that might cause us to lose a sharp or distinctive edge as an economy in our own right. I am interested in the witnesses' views on this issue.

Professor Frances Ruane

The Deputy is absolutely right to draw attention to SMEs. There is a tendency here to focus on foreign multinationals, partly because when they change, it is all over the newspapers, due to their size. It has been particularly important for SMEs to be able to export to Europe and to be supported by Enterprise Ireland in doing that. Forfás, among other organisations, has examined the impediments to small enterprises doing business and ways for them to reduce their cost base. There has been quite a degree of progress in that area. Many of the recommendations involve very sensible, straightforward policy changes that will reduce their costs. SMEs require quite a degree of flexibility in terms of conditions of employment to enable them to cope with the ebbs and flows of markets. However, that tends to happen normally and naturally within such enterprises.

I agree with the Deputy's argument that every developed country should operate as if it is a developing one. When I did my PhD thesis almost 30 years ago, I described Ireland as a "semi-developed economy". When I gave my thesis to the representatives of the IDA at that time, they were quite insulted. The literature I used in my research came from developing rather than developed countries because of the position of Ireland at that time. It was 1973 and we had just joined the EEC. The Deputy is correct in arguing that countries should not view themselves as having "got there" as it were. Such a change in mindset has probably been triggered by the entry of China and India into the world economy, which has reinvigorated countries and made them acutely aware of the fact that they require ongoing development.

European education is not in great shape and competition from outside Europe has revealed that fact to us. When one speaks to researchers from any part of Europe about the university system in their countries, they begin to tear their hair out in exasperation. The Deputy asked if we can invest in education on our own, given our size. Part of the Bologna Process is to make mobility more feasible which, in a sense, is a nice way of being networked in without establishing solid relations. Ireland is at an enormous advantage through having English as a first language. However, that advantage is being eroded because the quality of English being spoken elsewhere is high and improving constantly. Ireland is faced with a serious challenge in ensuring that there is no gap between the rhetoric and reality in terms of the quality of our education. That issue will come to the fore even more in the next 10 years, given the globalisation process and the fact that Europe is becoming more and more integrated. I was in Germany last week and was struck by the fact that many of those over 50 did not have good English but everyone younger than that had an excellent command of the language. There has been enormous progress in Europe in that regard.

Further expansion into eastern Europe would create more competition within the market. The impact we experienced with the recent entrants probably gave a good picture of how it would pan out.

Professor John FitzGerald

Enlargement is positive; therefore, Croatia joining cannot be bad for us.

On the cost base, the biggest problem in the short term is presented by the credit crunch. Intel will not suffer because it is well capitalised and will not have problems in getting its money — the same goes for other FDI firms. It is small and medium enterprises such as those with 30 people producing software for a world market over the Internet which will have problems. The recapitalisation of the Irish banking system should ensure that next year firms, SMEs and households which want credit and have prospects will be able to get it.

Regarding education, research done by my colleagues, Mr. Alan Barrett and Mr. Philip O'Connell, shows that Irish people who emigrate and return are 10% more productive during their lives. They learn foreign languages and how to do things differently. We must consider education in a broad sense; I hope the people who emigrate next year will come back, like homing pigeons, and bring something with them.

Senator Phil Prendergast

My question is simpler. I thank the delegates for their attendance and apologise for being late. Will they comment on the social progress clause regarding workers' rights? What is the way forward with respect to the Lisbon treaty?

Professor John FitzGerald

I do not have any comment to make on that matter.

Chairman

Does Mr. Fitzgerald have a comment to make in response to either question?

Professor John FitzGerald

No. A flexible labour market is important. We have put in place major safeguards which I do not regret.

Professor Frances Ruane

A balance should be struck. There is no point having rights that are at variance with the situation that widespread unemployment is the consequence. The labour market has become more flexible across the board. This is necessary in the long term. While I am not an expert in this area, we should recognise the importance of labour market legislation that supports workers because it sends a positive signal.

Deputy Michael McGrath

I will be brief. I have just two points to make.

Professor FitzGerald has been very specific in identifying the consequences of the uncertainty following our rejection of the Lisbon treaty. He clarified my earlier point on the Irish banks and their ability to access credit in the international banking system. He has made the point that this is uncertain, given the uncertainty hanging over Ireland generally, and that when they do access such funding, they may pay a higher rate. He made an important point when he established a direct link between the rejection of the Lisbon treaty and the cost the Irish banks will have to pay in accessing credit in the international banking system. Is it inevitable that this will result in higher interest rates for retail customers on Main Street? If the damage to Ireland's reputation is sustained and the uncertainty continues, will it result in higher interest rates or other charges? Will the ability of banks to loan money be affected?

My second point relates to the provisions in the Lisbon treaty dealing with member states in the eurozone, the euro group. Certain provisions empower the euro group to take common positions on issues relevant to international financial institutions and appropriate measures to ensure unified representation. If Ireland rejects the treaty again or if the other euro group countries proceed with reforms by means of enhanced co-operation or another legal mechanism and this becomes the only country on a second tier, what would the consequences be for us, particularly at a time when the architecture of the global financial industry is under discussion and review?

The G20 summit which will take place in Washington in the next few days will discuss measures to improve global regulation of the financial services industry. If those reforms go through, in terms of the euro group having a permanent chairman for two and a half years and Ireland not being in a position to sign up to this, what will be the consequences of this for Ireland? I believe they would be disastrous. I am interested to hear the witnesses' views on the matter.

Professor Frances Ruane

I will leave the final question for Professor FitzGerald as he thinks more about these issues than I do.

For us to find ourselves on a solo run in a second tier in Europe would be a disaster in terms of our interactions within the European family of countries. We must at this stage view ourselves as a mature member of the European Union. We are not among the original six members but became a member very early on. We are viewed as a country that has benefited from and benefited Europe. The perception of our being in that second tier would disadvantage us in all sorts of subtle ways, including in our business and human interactions with Europe. Professor FitzGerald referred earlier to people's view of us as a country within a European context. To be alone in that second tier would be disastrous for us.

Professor John FitzGerald

There is no inevitability of problems but there is a potential for problems. What rumours people spread is not covered by law. In September 1992, when sterling dropped out of the EMS, four German banks held large quantities of Irish Government debt. They were the major holders of Irish Government debt abroad. Only one individual from these banks dealt with Ireland as others, with whom Ireland dealt, were on holidays. The banks did not know what to do and decided it best to never get involved with Ireland again.

The question that arises is, if a rumour is spread, will people in financial markets in the rest of the world invest in having a whole series of people watching Ireland. The answer is "No". The concern is that it would not be real, but rumours might affect us adversely even if there was no change in our de facto legal status. This is not something I can quantify. It has happened before, particularly in financial markets. One’s concern would be that in difficult times people trot things out which are totally untrue and one can be affected. When selling widgets, computer chips or software the real world counts and one does not get these waves of sentiment which cause problems.

In terms of the euro group and marginalisation, it is precisely such a marginalisation within the euro group that would give weight to such rumours thus giving rise to problems. It was interesting that Gordon Browne was brought into the meeting of the euro group. The Swedish and Danish Governments should have been brought in too. Financial stability is not a euro issue. The ECB provides credit but regulation of the banking system is a European-wide problem. I would hope that the euro group represents EU-wide policy on financial stability. It is true that marginalisation in any form could have consequences for us.

Deputy Michael McGrath

On the point on interest rates, if Irish banks find it more difficult to access credit and are paying a higher rate, this will inevitably filter down to main street. Professor FitzGerald's point is that if uncertainty arises from the rejection of Lisbon and we are marginalised in Europe, this could have a tangible financial consequence for banks, businesses and individual customers in Ireland, which is a critical point. Is this what Professor FitzGerald is saying?

Professor John FitzGerald

Yes.

Professor Frances Ruane

We saw the positive effect for Ireland when we joined the euro area. In terms of foreign direct investment, Ireland was seen as being strongly linked into Europe. Something that sends a detachment in the opposite direction, one cannot help thinking, would have a negative effect in this regard. One of the difficulties currently being experienced in Ireland is that the positive impact of Europe on Ireland is not perceived because it happened gradually over 30 years. When teaching students, I was always struck by how little they knew about what had happened in the world before and after Europe. This information was not in their history books and they were not up to date on current affairs. One of the reasons for our current difficulties is that it was a continuous process of improvement and benefit to us.

Deputy Joe Costello

In the context of the credit crunch, the fact that Irish banks and financial institutions appear to have little or no liquidity and given the cost of buying money, what is the ESRI's view on the National Pensions Reserve Fund being made available in some form to our financial institutions? Second, small and medium enterprises are the real driving engine in providing employment. At the last summit the European Central Bank made €30 billion available for SMEs through the European Union. Should the Irish banks and financial institutions not be able to access and use such funds?

My final point pertains to our guests' remarks on the social progress clause. The Millward Brown survey showed that approximately 40% of people regarded the protection of workers' rights as a major factor in the manner in which they had voted. The Irish Congress of Trade Unions has appeared before the sub-committee, as have other trade unions. Moreover, the European Trade Union Confederation has made a statement to the effect that it considers the appropriate way forward to be a social progress clause agreed among the member states and appended to a future treaty. It would not necessarily be a condition of any current ratification process but would be appended at a future date. How would the delegates comment in this regard?

Professor John FitzGerald

On the National Pensions Reserve Fund, the Government has a string of assets, as well as more liabilities, which one should consider in net terms in that the fund does not constitute a secret pot of money waiting to be used. The Government can borrow money or sell assets. Therefore, I would not get overly hung up on that issue.

As regards SMEs driving the economy and funding for them, the French originally had a proposal to have a special fund. The problem is that governments are not bankers and do not know which SMEs are good or bad prospects. As one must operate through the banking system, it is an issue of getting the Irish banking system working. It is probably not that much of a problem. The two major banks indicated in August that they had authorised three times as much for mortgages as had been drawn down. Consequently, households are not facing a problem in this regard. While SMEs are beginning to face a problem, the real problems will arise when the economy begins to recover and people decide they would like to buy a house, only to be told to get stuffed as the banks do not have the money. This is an issue on which the Government is correct to take its time in deciding what to do. However, I hope it will take further action in the near future.

On the social progress clause, I do not have a problem with its contents. However, I am not an expert in that area and in a sense the question is political. I am not in a position to judge what the people want. However, on whether a general social progress clause would have an impact or be good or bad, it would obviously depend on its terms.

Professor Frances Ruane

I have nothing further to add.

Chairman

I thank Professor FitzGerald and Professor Ruane for their contributions which have been extremely helpful to the sub-committee in its work. We are grateful to them and thank them for their attendance at short notice.

The sub-committee went into private session at 11.20 a.m. and resumed in public session at 11.35 a.m.

Chairman

I welcome Mr. Bobby McDonagh from the Department of Foreign Affairs. He may already be aware of the background to the sub-committee's work but I will outline it briefly in order that he will know what we are doing and why he is here.

The sub-committee was established to consider Ireland's future in the European Union in light of the result in the referendum on the Lisbon treaty. We received four terms of reference from the Government, each of which we have turned into a work module. Today, we are considering how Ireland operates within EU institutions and Mr. McDonagh's assessment of our current and future influence therein.

We are grateful that Mr. McDonagh has agreed to address the committee on short notice. I draw his attention to the fact that members of the committee have absolute privilege, but the same privilege does not apply to him. He will have ten minutes to make his opening comments, after which each group will speak for ten minutes. Anyone who has not had an opportunity to contribute by then will be given six minutes. I will inform Mr. McDonagh when he has one minute remaining.

Mr. Bobby McDonagh

I thank the Chairman. I am delighted to have been invited to address the committee and I wish it every success in its work. I will limit my introductory remarks to ten minutes or one or two minutes longer, but not much longer.

I welcome this opportunity to set out the role of Ireland's permanent representation to the European Union and to offer the committee my perspective on the functioning of EU institutions and on Ireland's role therein. I would be happy to try to answer any questions members may have in light of my comments.

The role of the permanent representation in Brussels is to protect and promote Ireland's interests in the EU. It has officers assigned from virtually every Department. In the case of most Departments, several officers are assigned. The largest contingent comes from the Department of Foreign Affairs. There are also four members of the Defence Forces and an officer assigned by the Attorney General's office.

We are delighted to work closely with the representative of the Houses of the Oireachtas in Brussels, Mr. John Hamilton. Like the representatives of other national parliaments, he is based in the European Parliament building, but he figures on the permanent representation's organigram and is a part of our common effort in looking after Ireland's interests in Brussels.

The permanent representation has a staff of 90, including 55 staff of diplomatic rank. By a long way, it is Ireland's largest diplomatic mission. I mention this simply to underline Ireland's substantial presence in Brussels, which reflects the importance that successive Governments have attached to influencing the EU decision-making process to the benefit of our people and in pursuit of their aspirations.

The core function of the permanent representation is to represent Ireland's interests in the Council of Ministers, working under the direction of the Government and in conjunction with the Irish Administration as a whole. The Council, as members of the sub-committee are aware, is one of the three main decision making institutions of the EU. It adopts EU legislation, as well as the annual budget, jointly with the European Parliament, in both cases based on proposals tabled by the European Commission. It plays the lead role in developing the EU's foreign policy. At the highest level — Heads of State or Government — it plays the predominant role in shaping the overall development of the EU and, where necessary, in agreeing the key compromises in major over-arching EU negotiations.

The permanent representation is closely involved in each of the four levels at which the Council operates. At the working group level, officers represent Ireland at the dozens of meetings that take place every day and week in Brussels to work on individual legislative proposals and to develop policy across the range of areas in which the EU has competence. Officials travelling from Departments in Dublin are also heavily involved in this work.

Three ambassadorial level committees, serviced in the case of each member state by its permanent representative, deputy permanent representative and political and security committee ambassador, meet at least once or twice every week to resolve issues that have not been resolved at working group level and to prepare ministerial discussion.

At ministerial level, Ireland is represented by the relevant Minister in each Council formation. The permanent representation provides advance guidance as well as on-the-spot, up-to-the-minute advice. In cases where a Minister may be unable to attend, the Irish delegation is led by myself or my deputy.

At the fourth and highest level, that of Heads of State or Government meeting in the European Council, the permanent representation provides support and advice in advance of and during the meetings as necessary.

It is in the Council of Ministers at every level that the elected governments of the member states, including Ireland, directly represent and defend their national views and interests. To put it more graphically, the Council is the one institution in which every member state sits behind a national nameplate, in our case "Éire — Ireland", since the recognition of Irish as an official language of the EU.

At every meeting in the Council, at every level, for every subject there is an Irish representative in the Irish seat representing Ireland's interests. I emphasise this point, although I know I have no need to do so to this sub-committee, because some media coverage gives the impression that Brussels is a vast amorphous bureaucracy handing down edicts to Ireland and other member states over which we have no influence or control. Nothing could be further from the truth. We advance our ideas and defend our corner in the Council consistently and effectively. We are tough where necessary and constructive where possible.

It is no mean thing, incidentally, to have a full seat at the table in Brussels even if, throughout our membership of the EU, we have been able to take that for granted. Some non-EU countries effectively have to implement a great part of EU legislation because they want access to our market but without having been represented at the table where that legislation was negotiated.

I emphasise the role of the Council, not to down play to the slightest degree the importance of either the European Parliament or the Commission. On the contrary, I emphasise constantly, including to my own staff, that if we are to optimise Ireland's influence in Brussels and to promote our interests successfully, we must also engage and interact, consistently and creatively, with the Parliament and the Commission.

The permanent representation has an excellent relationship with the Irish MEPs and works very closely with them in pursuit of Ireland's interests. MEPs are not bound to agree with the Government position. They quite naturally disagree with each other from one issue to another, but when it comes to protecting Irish interests, even when those interests may be defined in different ways, our aim is a profoundly shared one.

Likewise the permanent representation works closely with the European Commission to seek to influence the shape of proposals, which it considers tabling or which are being progressed through the Council. We interact with Commissioner McCreevy and his cabinet but also much more widely. There are more Irish officials in key senior positions in the Commission, including the most senior post of Secretary General, than is the case with any other small or medium-sized member state. However, our networking is by no means limited to Irish officials. The Commission is not some faceless bureaucracy which is set on ignoring us or, worse still, which is out to "get us". On the contrary, it is a particularly open organisation which listens to sensible ideas and rational arguments and engages in open-minded interaction with Governments, Parliaments, civil society and the media.

When I was invited to appear before the sub-committee today to give my perspective on the institutions of the European Union, I reflected carefully on which aspects of the EU's complex institutional structures my remarks might most usefully focus on. I do not want to trespass unduly on the sub-committee's time and would like to leave time to answer any questions members may have. Therefore, I will simply offer the committee some very brief personal reflections.

The aim and role of any Irish Government and administration in negotiations in Brussels is quite simply to protect and promote Ireland's interests. The permanent representation is honoured to play a role in that process. This may seem an obvious point but it is one which can be misunderstood. Irish Governments, in common with the governments of other member states, do not pursue some vague European interest distinct from, or in contradiction with, our national interests. However, our national interest increasingly includes an enormously important European dimension. It is in our national interest, for example, to be full members of the EU, that the EU functions effectively, that it is equipped to address the challenges ahead and that we are sensitive to the concerns of others so that they will be sensitive to our national concerns. This European dimension is not in contradiction with our national interest but rather an integral part of the wider, long-term definition of that national interest.

The challenge of advancing our interests in the EU is not an easy one. Negotiations in Brussels often involve strongly competing interests and, as in any international negotiation, hard-won compromises. I am in a better position than many to understand the depth of the challenges involved. We, like others, have a limited amount of ammunition and we must use it well. Nevertheless, it is fair to say that during the 35 years of our EU membership, successive Irish Governments have been exceptionally successful — many of our partners would say uniquely successful — in advancing our interests.

Many ingredients have contributed to our success but none have been more important than goodwill. The goodwill of partners and EU institutions has been built up painstakingly through constructive engagement, several successful Irish Presidencies and respecting the concerns and aspirations of others. That goodwill is not a whimsical feather in our cap but a vital negotiating resource.

We have managed to promote our interests successfully through the different decision-making procedures of the EU, through unanimity for the most sensitive matters and majority voting for most other issues. It is right that the most sensitive matters should remain subject to unanimity, including taxation and defence. It is also the case, however, as our experience demonstrates clearly, that we have been able to promote our interests successfully across a wide range of areas with majority voting — more successfully than would have been the case if unanimity had applied. Decision-making in the European Union is not just about being able to say no. It is also about being able to say yes. The completion of the internal market and agriculture are two examples where decision making by majority vote over several decades has proved very much in our interests.

Apart from the decision-making procedures which apply in each case, EU institutions operate in a spirit of accommodation and respect. The instinct is never to isolate delegations, push them into a corner or press for an early vote. Actual votes are rare. The way of doing business is to try to understand and accommodate the legitimate concerns of others, to find reasonable compromises. Ireland is broadly supportive of a large majority of proposals discussed in Brussels. Where we have concerns, we explain them, lobby and form alliances to have them addressed. Our overwhelming experience has been that compromises are found to address our concerns, as well as those of others. We rarely find ourselves outvoted. Needless to say, the spirit of accommodation and respect is a two-way street. Smaller member states tend to be comfortable in the evolving institutional structure of the European Union. This reflects the balances within and between the institutions — where the role of the Commission as the defender of the common interest remains important. It reflects the spirit of accommodation and mutual respect which I have described and which is the very lifeblood of the Union. It reflects the reality that negotiations in the Council never break down into the large versus the small member states. Almost always, as Ireland seeks to form alliances, we can count one or more large member states on our side.

The European Union's institutions are imperfect, as all institutions are. However, in many ways, at the same time, they are remarkable, bearing as they do the weight of the greatest pooling of sovereignty, in agreed areas, in the history of relations between free democratic countries. One of their imperfections is that they may appear complex and difficult to understand. We must constantly work to streamline and make them more comprehensible to citizens. At the same time, a degree of complexity reflects the very nature of the European Union, in which the interests of all member states are taken into account. A degree of complexity is necessary and particularly important for smaller countries which in any context have a disproportionate need for clear laws and rules. There were many attempts to organise the European continent in a much simpler way during the centuries, involving the sending of armies or tanks across borders. These proved less successful.

Chairman

I need to interrupt briefly to inform my colleagues that a Dáil vote has been called. I am afraid this is part of how we conduct business and hope Mr. McDonagh will be good enough to proceed.

Mr. Bobby McDonagh

I fully understand. The European Union faces growing challenges and responsibilities, including those presented by its own development, growth and diversity; the concerns of citizens in the face of globalisation; communicating better with citizens and providing leadership on the international stage in areas such as climate change, the financial crisis, human rights and peacekeeping. It is self-evident the European Union's institutions must be capable of reasonable adaptation to address these growing challenges. That change must preserve the essential balances and respect the core sensitivities of member states while streamlining procedures and enhancing the democratic parliamentary dimension. At the same time, the widespread view among partners is that the Union cannot go on endlessly discussing institutional questions. The institutions are the essential basis for effective action but are no substitute for it. The outcome of nearly seven years of intergovernmental negotiations, launched at Laeken in December 2001, is seen by our partners as the definitive answer for several generations to equipping the Union for the challenges facing it at the start of the 21st century. The only way to influence any organisation is to be at its heart.

I again thank the sub-committee for inviting me. I will be happy to try to respond to any questions raised and be of any help I can in the sub-committee's ongoing work.

Chairman

I thank Mr. McDonagh. We will start with Senator de Búrca who will be followed by Senator Prendergast. I hope by that stage my Dáil colleagues will have returned.

Senator Déirdre de Búrca

I welcome Mr. McDonagh and thank him for his presentation. He referred to the goodwill of other members states and institutions of the European Union towards Ireland because of our participation in the Union to date and the several successful Presidencies held by Ireland. Perhaps he will comment on whether he believes that goodwill has been damaged by the Irish people's rejection of the Lisbon treaty. In addition, what action does he believe the other members states are anticipating on the part of Ireland?

Mr. McDonagh mentioned the Commission as being one of the institutions with which the permanent representation works closely. Obviously the issue of rotation of Commissioners was one that exercised the minds of many people during the campaign on the Lisbon treaty. There was much public concern that the lack of an Irish Commissioner on the Commission would somehow mean we would have less influence and that the interests of our country would not be well served. What is his opinion in regard to the continued enlargement of the Commission, in terms of numbers, assuming the process of enlargement continues? How large can it become and does Mr. McDonagh believe there is a danger that if the Commission were to become larger it could evolve into a two-tier system with senior and junior portfolios being distributed among member states?

Mr. McDonagh referred also to the challenges confronting the European Union. I am interested to hear what he believes the challenges facing Ireland are, particularly in the context of the European Union? What are the priority areas for this country and how best might they be addressed through the European Union by way of our membership of the EU?

Mr. Bobby McDonagh

The Senator asked four questions. On the question of goodwill, our partners are extremely understanding, sympathetic and courteous to me and everybody else. There is a willingness to try to help us to find a way through the situation in which we find ourselves. We have a limited amount of negotiating ammunition and as long as we have to use that ammunition to get through the situation we are in, we cannot use it for other purposes. I do not want to exaggerate the situation. My role in Brussels is to defend and promote Ireland's interests.

Following the outcome of the referendum I knew some of my staff would be wondering where we go from here. I convened a meeting of the staff and said I had done so to celebrate, not the outcome of the referendum one way or the other, but that we have the privilege of being public servants and it is our role to defend Ireland's interests. All we can do is redouble our efforts.

However, we have a limited amount of ammunition which currently must be partly used for other purposes. All the goodwill has not evaporated over night but our position is not strengthened. To put it another way, until earlier this year, people on meeting an Irish representative would mentally think of Ireland as a small constructive country which has been helpful to them and so they wished only to be helpful to us. Now, without any ill-will, when they see us they think of Lisbon. It is like a light bulb flashing over our heads. I do not want to exaggerate matters. We have a place at the table and are defending our interests. A real problem will arise if we cannot find a way through the current situation.

The Senator's next question was about what action our partners anticipate from us. In summary, what they anticipate is what the Taoiseach said immediately following the referendum and has repeated since then, namely, that we want to find a solution that is acceptable to Ireland and Europe. I can elaborate further but given the time available and the remaining questions to be answered, perhaps that is not possible.

Chairman

If Mr. McDonagh could elaborate further on that point it would be helpful.

Mr. Bobby McDonagh

The partners and ourselves negotiated the Lisbon treaty over seven years. A factor that is not significantly played up in the presentation is that the key compromises in that treaty were negotiated by the former Taoiseach during Ireland's Presidency of the EU. The sub-committee was established to consider Ireland's future in the European Union in light of the result in the referendum on the Lisbon treaty.

There is awareness of the role we played in that process. While there is much understanding and sympathy for us, the issue of finding a way forward is not seen solely through an Irish prism. It also is seen through the prism of the wider perspective of the European Union. I refer to the challenges it faces and the need to equip the Union to undertake its growing international responsibilities. Increasingly, people look to the European Union, for example, for our role in peacekeeping in respect of the missions we have and those we might undertake. They look to the European Union for our role on climate change. Essentially, the European Union is providing the world with all its leadership on this issue.

On development, 60% of development aid in the world comes from the European Union and its member states. Consequently, while they wish to find a way through and are sympathetic to us, they wish to do so through a prism that is somewhat wider than our situation, although they take full account of it. Clearly, they are continuing with or have completed the ratification process. However, within this framework they wish to be as sympathetic and helpful to us as possible.

The third question was in respect of the Commission composition, which is an extremely important and fair question. I note the sub-committee has put it to others who have appeared before it. There has been a genuine debate on the issue of the composition of the Commission for 20 years, during the discussions on the Amsterdam, Nice and constitutional treaties and on down to the Lisbon treaty. On the one hand, it was argued that principally, the Commission should be sensitive to the concerns of all member states and therefore there should be a Commissioner from each member state. They would not be representative, as Commissioners do not represent member states. The other side of the argument was that an efficient Commission was required and were the Commission too large, there would be a risk that, for example, Commissioners with small portfolios might be inclined to table proposals that were not strictly necessary or that it might be difficult to have a more coherent approach. Moreover, it gives rise to the risk of a two-tier Commission, to which the Senator referred. It was an idea that was floated some years ago but which has not been mentioned recently. These two elements have been in play for the best part of 20 years.

Another element that arose during the negotiations, especially in the European convention, was the suggestion by some larger countries that larger countries always should be represented on the Commission while smaller countries should only have a Commissioner on rotation. This third dimension was regarded as being the most unacceptable outcome. Ireland was strongly opposed to it and led the opposition to it at the European convention. Ultimately, as members are aware, the outcome that was accepted was one that envisaged a smaller Commission in which there is absolutely guaranteed equality between the members of the Commission and between the member states in nominating members of the Commission.

I make this point by way of background as the issue of the Commission being sensitive to the concerns of all is genuine. However, it is not simply through having a Commissioner that the Commission is sensitive to the concerns of each member state. As I stated in my presentation, there are Irish officials in key positions in the Commission and I am aware that Ms Catherine Day has appeared before the sub-committee. Moreover, this does not depend solely on dealing with Irish people. We deal with the Commission every day of every week and do so with people of whatever nationality. We find it a very open place. Irish Ministers meet Commissioners and I have never met an Irish delegation representing any interest, such as NGOs or civil society, that has gone to Brussels and has failed to find the Commission to be open to ideas and rational argument.

The question of what the Government might seek in trying to find a way through this crisis is a matter for the Government to determine and for this sub-committee to come to a view on. However, I am trying to place this genuine and sensitive question into its proper context. It will not necessarily be easy to secure agreement to go back on this arrangement. Although it is not possible under the existing treaties, there is scope in the Lisbon treaty. However, it would involve all member states agreeing to change the position and in some ways, this would constitute a more significant change than anything that changed between the constitutional treaty and the Lisbon treaty.

Having worked in two Commissioners'cabinets, I know it from the inside and it is a factor in sensitising the Commission. However, as my role is to provide background while it is for the sub-committee to determine what might be the best way forward and to give its view to the Government, I again emphasise that Commissioners spend approximately 90% of their time doing things that have nothing to do with their countries. The Commissioner for Internal Market and Services is dealing with important, European-wide issues relating to the follow-up to the financial crisis. From time to time, Commissioners are obliged to initiate legal action on behalf of the Commission against the member states from which they come. I am trying to situate the question in the context of the reality. However, I recognise that this is a highly sensitive matter in respect of which there are strong views. There were sensitivities in the context of our referendum. I am trying to contribute to the sub-committee’s analysis of the context in which the Commission must be addressed.

The final question posed by Senator de Búrca relates to the challenges facing Ireland in the next ten years. In large measure, the challenges facing Ireland are the same as those facing Europe. Ireland is part of Europe. Saving the planet from climate change is both an Irish and a European issue. If we want to address the financial crisis, it is a national and also a European issue. This comes back to what I said earlier, namely, that we pursue national interests and do not pursue some vague, separate idea of a European super state or anything of that nature. There is a strong European dimension to what we do. In trying to answer as honestly and objectively as possible, I would state that the main challenges facing Ireland in Europe are precisely those that are facing our partners collectively in the Union.

One could give a seminar on the question of the challenges facing Ireland in Europe. Each day, working groups in Brussels cover every dimension of the areas in which the Union has competence. Ministerial meetings on different topics take place once or twice each week. We defend our interests in the justice and home affairs and financial areas. The future of the financial perspectives is obviously an important matter for Ireland because we have benefited so much from the Common Agricultural Policy, CAP, and we still receive several billion euro each year from it. Negotiations on the CAP are always difficult and we have quite a number of partners who share our concerns in respect of its future. However, there are not many countries which place the CAP at the top of their lists. There are states which are keen on maintaining it or on it not being reformed too radically. However, these states often have higher priorities in negotiating, for example, the future of Structural Fund, and so on which for Ireland has become a lesser priority. This is one example of an issue that will come up for negotiation in 2009 or 2010 and in respect of which we will be obliged to be particularly vigilant in the context of our interests.

Senator Phil Prendergast

In a way, Mr. McDonagh has already replied to my question. However, I wish to comment on a particular matter. The context in which Ireland would lose its Commissioner was perceived as being positive for the "No" side. Given that he knows the institutions so well, is Mr. McDonagh of the view that each country should have a Commissioner? It is wonderful that Ireland's representatives in Europe are of such a high calibre. As our permanent representative in Brussels, has Mr. McDonagh perceived any changes in our influence in Europe since the result in the referendum on the Lisbon treaty? A level of respect has built up for Ireland with regard to how we do business and courtesy is being extended now. There is the unknown factor regarding what is happening globally in the context of financial turmoil and rising levels of unemployment. A huge number of different issues are in play and this is leading to uncertainty. The sub-committee is trying to find some kind of focus with regard to how Ireland should move forward. In that context, can Mr. McDonagh indicate any changes in perception among people in Europe with regard to our rejection of the Lisbon treaty?

Mr. Bobby McDonagh

I thank the Senator for her kind remarks about my staff and other public servants working in the European area.

Our traditional view on Commissioners, negotiations on which have spanned many intergovernmental conferences over 20 years, is that we favour one Commissioner per member state. The efficiency of the Commission has always been an issue. At the European convention, the idea of a UN Security Council-type arrangement with permanent and rotating members was strongly tabled. The final outcome accepted by all 27 member states, including the 21 small and medium-sized countries, was a fair balance.

I am conscious of the issue's sensitivity and that it arose in public debate at this committee. I would be comfortable with one Commissioner per member state. I did not emphasise this point because, as a civil servant, my best role is to try to explain the context in which the issue must be addressed. It is for politicians to reach a view and to convey it to the Government. It will not be easy to do. After the French and Dutch "No" votes, there was no re-opening of the institutional package, but there may be scope for the matter to be addressed in the new treaty.

I have worked in two Commissioners'cabinets, including the Commissioner whose daughter has left to vote in the Dáil. The Commission is a channel for introducing sensitive issues. For example, the Italian Commissioner will not raise his hand at a meeting and say that Italy does not want something. That can be done at Council meetings where member states are represented. It is a question of ensuring that all rational arguments are brought to bear. Normally, a Commissioner will consider those arguments and precedents, but the extra safety valve ensures this is done.

In replying to Senator de Búrca, I referred to the change in influence. I would not like to exaggerate its short-term negative impact. We go about our business and we are proud to do our jobs. The goodwill we have built over the years has not evaporated overnight. We have a full seat at the table to make our case. However, it is also true to state that goodwill has not increased in recent months. Given that the Taoiseach has made it clear that the way through must be acceptable to Brussels and respectful of the Irish people's decision in the referendum, we must deploy our negotiating ammunition.

The main issue will arise if we do not find our way through because, while there is no wish in Europe to isolate and make life difficult for Ireland, there is a wish after seven years of negotiation to equip the Union to address challenges for a generation or two. I emphasis the generational point. I read the report of Ms Catherine Day's appearance at the committee when two generations were mentioned, but I would say one generation. It is difficult to know.

Each of a series of treaties — Maastricht, Amsterdam, Nice, the constitution and Lisbon — contains the seeds of the following treaty. After all of the negotiations, however, there is now a sense that this is it. It is not a question of creating a federal Europe or a united states of Europe. Rather, it is about making Europe more efficient, democratic and able to take on additional challenges.

Regarding growing uncertainty, there have been several new elements of uncertainty in the past six months. No one could have fully foreseen the financial crisis. Every European country believes it is better to be within the EU than without. Every country in the eurozone believes that is also for the best. One need only consider those not in the eurozone or the EU.

The Georgian crisis was also a significant and unexpected development. The Presidency of the EU averted what could have become a much worse crisis on Europe's borders. One cannot take Europe's stability for granted. It is remarkable that right across the continent, the EU has provided stability over a long period. The western Balkans is an area that is potentially subject to instability and could return to the bad times of the past but the existence of the European Union and the prospect of a closer relationship with it offer hope to the people of that region and preserves and develops the stability that exists there. The Georgian crisis could have become something much worse and it is quite remarkable that the EU, acting without any military power but through soft diplomacy, managed to calm that situation.

In response to the question on growing uncertainty, there is no doubt that our EU partners hope, with us, to be able to implement the Lisbon treaty. The fact that there have been other recent crises has strengthened the sense that we must introduce the reforms provided for in that treaty, including for example, having a long-term President of the European Council, which would provide a level of much-needed continuity. It is not that one must be from a big country to do the job. There are some things which big countries can do better, while others are best left to smaller countries. Some of the most sensitive negotiations have been done better during the Presidencies of smaller member states, not least the conclusion of the constitutional treaty. That treaty was not ratified, ultimately, but the negotiations were very difficult and were handled well by a small country. It is the question of continuity upon which people are currently focusing.

Deputy Timmy Dooley

I welcome Mr. McDonagh and thank him for his presentation. Unfortunately, I did not hear the questions that were posed so if there is some repetition, I ask Mr. McDonagh to allude to that, to save himself having to go over issues already addressed.

Mr. McDonagh has set out very clearly here the role he plays in the EU, as well as the role of the various institutions of the Union, which is largely lost on most Irish people. He has outlined clearly the role of the Government at the Council of Ministers and explained how, through the Executive's representation, decisions are taken and the process involved there.

There is a mistaken belief that there is a bureaucracy at EU level that comes to its own conclusions without reference to the member states. That belief has been allowed to develop and people do not feel they have a day-to-day involvement in the decision-making process. This contrasts, for example, with the business being transacted here, whereby if there is a vote on a crucial issue it is highlighted in the media. As a state we do not have a high level of knowledge of the day-to-day operations of the EU and the decisions made at meetings of the Council of Ministers. In that context, I ask Mr. McDonagh to outline any ideas he has to address the communication deficit, based on his experience here and in Europe.

Witnesses who have come before this sub-committee have indicated that there has been a loss of influence by the Irish in terms of negotiations at European level as a result of our rejection of the Lisbon treaty. Has Mr. McDonagh any experience of that? Is it more difficult now for Ireland to negotiate in the working groups or at ambassadorial level within the permanent representation structure? Has Mr. McDonagh experienced any negativity in the course of negotiating on behalf of the Irish State? Will he give his assessment of the growth of euroscepticism and outline for us what he believes is the agenda of eurosceptics? Some people have suggested that they are pro-EU but anti-Lisbon and have argued that the Lisbon treaty will ultimately create major problems for the EU.

Deputy Beverley Flynn

I also welcome Mr. McDonagh and thank him for his presentation. Mr. McDonagh mentioned the permanent representation and how it interacts with the European Parliament and Commission. He specifically referred to Commissioner McCreevy but he also mentioned how the permanent representation interacts generally. The importance of having an Irish Commissioner in Brussels has been a source of much discussion during the Lisbon treaty debate, does Mr. McDonagh view this as essential for Ireland?

One page in Mr. McDonagh's presentation says member states do not pursue some vague European interest distinct from, or in contradiction to, their national interests. Social issues came up throughout the debate on the Lisbon treaty and there is a feeling in Ireland that, while we make our own legislation and have our own constitutional way to deal with social issues, the decision may be made for us and we cannot impose our views on Europe. Should we do more to influence how Europe progresses on issues, particularly social issues, that we hold dear? It has been suggested that on the international stage, at EU conference level, Ireland may not play its full part in exerting influence in the social arena.

Regarding voting strength and the changes that will occur if the Lisbon treaty is ratified, Mr. McDonagh said it is rare for votes to be taken, even where qualified majority voting is in place. Many people have come before the sub-committee on that point and Dr. Gavin Barrett said that 80% of the time no vote is taken where qualified majority voting applies. He also made the point that the change in voting strength that the Lisbon treaty would bring about is not negative for Ireland; he essentially said that, in real terms, it is of no consequence for Ireland. Does Mr. McDonagh feel that the changes that could occur in voting strength are important for Ireland?

Could Mr. McDonagh also comment on the other changes proposed to the various EU institutions under the Lisbon treaty? For example, how will the president of the European Council impact on Ireland?

I know the permanent representation engages with both the European Parliament and the European Commission but what is the level of negotiation with Members of the Irish Parliament? The reason the Lisbon treaty was so badly explained was a lack of understanding among Irish parliamentarians of how EU institutions operate. I realise John Hamilton is based in Brussels but what can Mr. McDonagh suggest to change the situation?

Mr. Bobby McDonagh

Many questions were asked and I may be briefer on the ones that were asked when the Deputy was not here. Deputy Flynn asked what more the permanent representation can do. I am delighted to be here because it is useful for me to be able to explain our role and dispel notions of a vast, faceless bureaucracy in Brussels. I emphasise that we are not an independent empire; we operate under the directions of the Government and implement its policies. The main interaction with this committee, the Government and the Oireachtas takes place domestically. If the Deputy feels she knows of more we could do in this regard I ask her to let us know. Committees of the Oireachtas have visited Brussels and the Joint Committee on Climate Change and Energy Security came last week — it had good meetings and we in the representation briefed its members. The institutions in Brussels and the European Parliament are extremely open to visitors. If members of the sub-committee have certain points of view they should, by all means, come to Brussels, where we will give every possible assistance. If there is more the members feel we can do they may let us know.

Deputy Dooley said there was a sense that the role of the institutions had been lost or was not fully understood and I think that is the case. It is not the case in this committee but it is the case publicly; some members of the public seem to think that Ireland has no way to influence the decision-making process in Brussels. We have 55 diplomats who work all day, every day with people who have travelled from Dublin. More importantly, Ministers come to all of the Council meetings to express the Irish point of view. We also have the opportunity to influence the other institutions; we constantly lobby both the Commission and the European Parliament and the Irish MEPs are the key in that respect. We have an opportunity to shape ideas in the Commission before they emerge. We always review how we do this and look for ways to improve. Most people in Brussels honestly believe that Ireland has punched above its weight for many decades. However, that is not the benchmark which is, whether we can do better. We have much potential influence with the institutions.

Deputy Dooley asked how Ireland interacts with the institutions. The idea of a Brussels elite is completely misleading. The Council consists of democratically-elected Governments of the member states. I forget who said that democracy is the worst form of government apart from all the other forms of government. The Council is a democratic institution with democratically-elected representatives. The European Parliament is the only multinational directly elected European Parliament in the world. The Commission is not elected because it must have an independent function, must respect the common interest and ensure that European law is applied fairly and correctly. The pretty widespread view, which Ireland would share, is that it is best that the Commission preserves its independence but remains as open an institution as possible.

The communication deficit is an issue I should have addressed when replying to Senator de Búrca's question about the challenges of the next ten years. There is a challenge in terms of communicating Europe. It is a challenge for every country. My view has always been there is almost a vicious circle, namely, people are bored because they do not understand Europe and they do not understand Europe because it is not explained and it is not explained because people find it boring. This is due in part to the fact that it is a little further away from us and people tend to focus first on local issues and then on national issues. To move one level beyond that, it is becoming something more difficult to explain. The European Union is complex and we must find ways of explaining it more simply. The fact is it is complex. It is every bit as complex as the organisation of a member state. However, if one looks at the media coverage of Europe, even very good media coverage, it receives only 5% coverage despite the complexities of it being every bit as complex as that being explained in the remaining 95%.

Another issue in terms of communications, a point often made, is that in all member states when good things happen they should not be claimed as victories and when bad things happen they should not be blamed on Europe. There is a collective process and we must present Europe as it is, warts and all. In terms of loss of influence, I addressed that point earlier. As the Taoiseach stated, the key issue is that we find a way through the current situation. I believe we have only a limited amount of negotiating ammunition, some of which must be used to work our way through this problem. Goodwill towards us has not been increased but we are fully respected and we must get on with the task. A previous speaker at the sub-committee said that Irish officials in Brussels looked shrunken. Members can judge for themselves; we are not. We are getting on with business and are proud to do so.

On the question regarding eurosceptics, this is more a political question than one for a civil servant. We live in democracies and people are fully entitled to their views whatever they may be. There is only one European Union, which is the union I have described, its institutions and the position it now finds itself in. That is not to say it does not evolve. There is a strong expectation that the European Union should be able to make modest changes to the manner in which it operates. There is only one European Union and it is the one I have tried to give members an insight into. I would like to think that whoever takes positions on us recognise the European Union for what it is. It is not a superstate; no member state is trying to create a superstate. In the 1980s, I wrote speeches on Europe. In those days, the language was different. It was about political union. All member states spoke of Europe in those terms. However, since Maastricht the speeches reflect the reality that Europe is about addressing the concerns of citizens, making it more effective and so on. The reality is that nobody is trying to move us towards a unified state.

Deputy Flynn asked about Irish Commissioners. I explained earlier what happens in regard to votes. All 27 member states, including the 21 smaller or medium-sized member states, accepted the outcome that is set out in the Lisbon treaty. However, it is for political decision as to what to seek in this or in other areas. I would be perfectly comfortable and always would have been, with a Commission in which there was one Commissioner per member state.

Deputy Flynn also referred to my comment that member states do not pursue some sort of vague European interest. This is true and it is extremely important to emphasise that Ireland's interests include a European dimension. While Ireland's identity includes a European dimension, this is not something that is separate or distinct from, or in contradiction with, our nationality or interests but is very much part of it.

As for social issues, Europe's basic position is that it does not wish to get involved in private morality issues. It gave us the abortion protocol we sought and which is being carried over into the draft Lisbon treaty without any difficulty. Obviously the Government will put forward its position on such sensitive issues in an appropriate way if they are under discussion. However, if we expect Europe to respect our sensitivities in this area, which we do and which it generally does, we cannot expect to be able to impose our views on others. However, as in other areas, we put forward the Government's positions in this regard and will continue to so do.

On the question of voting under qualified majority voting, QMV, it certainly is the case that QMV voting is very rare. On the other hand, QMV will operate under a different dynamic. Under unanimity, a matter will not be agreed if one country really digs its heels in. For example, were there ever a proposal to have a common consolidated tax base, we know what would be the position of the Irish Government or probably any future Irish Government. In the case of qualified majority voting, the ultimate theoretical possibility of a vote means that people negotiate towards a compromise. For Ireland, this has proven to be acceptable in pretty well every case. Agriculture is an area in which we have always negotiated positions and outcomes which, while imperfect — as in negotiations one always wants more — have been exceptionally positive for Ireland.

As for the change in voting strength, Deputy Flynn quoted one of the sub-committee's previous witnesses, Dr. Gavin Barrett, as stating that the change in voting strength would have no consequences. I fully agree with that. First, unanimity will remain for certain questions. Second, within QMV, we are moving from the present voting rights not to a situation based on population but to a dual majority system. Under one aspect of the dual majority system, that is, the population system, the big countries will have more of a weight than is the case at present. However, under the second aspect, in which all member states will be treated equally, we will have more influence than was the case previously. Moreover, if under qualified majority voting, one tries to construct a blocking minority or an alliance to try to achieve something, what matters as much as one's own vote are the votes possessed by the other member states in the alliance. For example, Ireland has and always had France as its strongest ally on the Common Agricultural Policy. We always find there is a big country on our side on issues in the European Union, usually in addition to a collection of other countries. Consequently the voting strength the other member states have in a qualified majority system is as important to constructing what we wish to construct as anything else.

Deputy Flynn's last question was on the permanent President of the European Council and what impact that would have. The main impact will be one of continuity. The President of the European Council will not be an independent person who will make up policy. He or she will be subject to all of the decision-making procedures of the European Union, including the consensus rule in the European Council, which will remain. There is no widely shared view that someone from a large country must occupy that position. While people from big countries might do some things slightly better, there probably are more things that people from small countries do better.

For clarity, the existing Presidency arrangement will not be completely abolished under the Lisbon treaty, should it ever enter into force. That arrangement will be broadly the same in the future under the Lisbon treaty. In other words, while the President of the European Council would be in place for a two and a half year term and while the foreign affairs Council would be chaired by the new high representative, it is envisaged that all of the other Council formations would be chaired for a six-month period by a single country. This would mean that, should the treaty come to pass, in the first half of 2013 Ireland will chair all of the Councils other than the European Council and the foreign affairs Council.

Senator Déirdre de Búrca

Mr. McDonagh stressed the need to communicate Europe. This is an important matter. Others referred to eurosceptic forces that are organising to a greater extent across the European Union. In Ireland, an organisation called Libertas was established and the person who heads it up has a background in communications and seemed to be very effective in communicating reasons people should not support the Lisbon treaty. There is no doubt that his efforts contributed to the eventual result in the referendum.

The European Union can no longer afford to be complacent with regard to communicating what it does. It appears there is a Europe-wide move to try to organise those groupings that are critical of the Union and that are perhaps hostile to the European project. In that context, it would make sense to the European Union to organise a response to this. Explaining why the EU is important cannot be taken for granted. The EU makes most sense as a political system when one considers the accelerating process of globalisation. Unfortunately, many householders who are focused on the local and on their immediate lives do not always understand how fast things change at global level. There is possibly a need to explain matters to them in this regard.

As Mr. McDonagh stated, we often take for granted the economic benefits that membership of the European Union and the eurozone bestow. The Union must be more proactive in highlighting its achievements across a range of policy areas. In addition, people need to believe that the communication process should involve consultation with citizens.

Mr. McDonagh referred to the importance of continuity in the context of the role of a permanent President of the EU. The President of the Czech Republic, which is due to take over the Presidency of the Union, is visiting Ireland at present. This individual has views on the European Union which, perhaps, are not necessarily consistent with those of many of the other Heads of State or Government. This leads to a certain confusion or, at the very least, a lack of consistency in messages. One individual holding the office of President on an ongoing basis would clearly engender greater continuity in respect of the position.

My final question relates to the banking crisis. When the Government moved quickly to provide a guarantee to certain Irish banks, there was a sense that the European Commission had been taken slightly by surprise and that there was not the degree of co-ordination that there might perhaps have been. However, nobody could predict how quickly things might happen. Is Mr. McDonagh of the view that it will be possible in the future for a more co-ordinated EU response that would involve action at national and European level?

Mr. Bobby McDonagh

On the point relating to communications, it would not be appropriate for me to comment on any individuals or organisations or on who might communicate better. Obviously, however, the standard of communication should be better. It is important to communicate the facts. That is a good starting point. Sometimes the facts are more complex and difficult to communicate than slogans. It is not just Ireland that recognises the need for better communication. The other member states and the European Commission also recognise this need. Commissioner Wallström, who is due to come before the sub-committee, is driving matters forward in this regard.

I cannot comment on the visit of the President of another member state to this country. The Minister has spoken on the radio on that subject and 26 Prime Ministers in the other member states have a different view.

On the banking crisis there is widespread recognition that Ireland had to react quickly and the way we reacted was approved by the Commission at a later stage. There is a sense of the need for and the likelihood of a co-ordinated approach. Every member state recognises that each must act in a way suitable to its own national circumstances but that it must be done in a co-ordinated way. The agreement reached at the meeting of euro group Heads of State and Government in Paris was referred to as a toolbox. It did not tell member states precisely what to do but suggested they use the tools they needed.

The question was asked as to whether it would be possible to act in a more co-ordinated way at national and European levels but I suggest there is a third level, namely the international level beyond the European Union. Not only has Ireland responded quickly and in a way that has been, to a certain extent, effective, but the European Union has responded with a series of meetings at the level of Head of Government, including one last Friday when the Taoiseach was in Brussels and a timetable of 100 days was set for a series of important technical issues to be addressed. The European Union will meet in Washington on 15 November with a clear set of positions that will contribute to and possibly play a leadership role in determining the outcome of the meeting.

Chairman

Mr. McDonagh referred to the importance of having a seat at the table for any discussions that take place. We have had a seat at the table throughout the history of our membership of the European Union. The question of opt-outs has arisen many times during the work of this sub-committee. How does Mr. McDonagh perceive the effectiveness of other member states to have been affected where they have had opt-outs in certain areas, particularly in terms of representing their own national interest?

What could happen in the medium to long term in the event of Ireland not ratifying the Lisbon? Mr. McDonagh touched on how people respond to us at the moment. If the situation were not to change, would it affect his ability as a permanent representative of our country abroad to represent us in sensitive negotiations on agriculture, climate change or other issues?

If we do not ratify, what is Mr. McDonagh's sense, gained from his meetings with colleagues in Brussels, of how other countries would respond?

Mr. Bobby McDonagh

On the effect of opt-outs on having a seat at the table, a significant amount of flexibility is already built into the European Union. For example, not all member states are members of the euro and there are provisions for enhanced co-operation which have never been used. Not every member state participates in every ESDP or foreign policy mission and Ireland has a triple lock in that regard. Each opt-out needs to studied in its own terms. Some countries that are not in the euro feel they should be in it and a debate in Denmark on that subject has become much more lively in light of the financial crisis.

It is difficult to generalise. If a country opts out it is not obliged to participate but it also means it has less influence over the process. The equivalent sub-committee of the Danish Parliament came before this sub-committee and I am aware of the Danish Government's views on whether its opt-outs have been helpful to Denmark in exercising its influence.

The provisions of the Lisbon treaty relating to justice and home affairs are perfectly manageable. If it enters into force Ireland will have the choice of opting in to any proposal it wants but it will not be obliged to do so. One has to look at each area individually and it is difficult to generalise but taking a general opt-out and not participating in an area will, by definition, reduce a country's influence, if not eliminate it completely.

I will respond to the question on what will happen in the medium and long term. As I stated in the past when discussing previous treaties and crises in the European Union, there is no plan B. Let me explain the reason there can be no plan B. In this instance there is no plan A as of yet because members will contribute to plan A and the Government will then decide how to proceed in December and beyond.

The question is what would happen if that solution, whatever it may be, does not work. The reason I say there can be no plan B, is that there is no authority in the European Union with sufficient authority to have a plan B. It may feed into the idea that some people wrongly have that there is some elite or some conspiracy but the fact is that if we faced another crisis it would depend on the reactions of all the individuals involved, namely, Chancellor Merkel, Prime Minister Gordon Browne, Prime Minister Rasmussen of Denmark and so on, the Government of the day, the view of the Oireachtas and the nature of the circumstance. Clearly at the end of the day if there is an inability to ratify what is on the table in some form, there would be a crisis and the crisis would affect Ireland.

In summary there is no point in coming before the committee if I am not honest with members. Of course it would affect Ireland's ability to negotiate but at the same time I would continue to use every ounce of my abilities and energies to try to do so, but we would be affected.

Deputy Beverley Flynn

Could I ask Mr. McDonagh to comment on the remarks of Professor John FitzGerald of the ESRI in regard to the lack of influence as a result of not passing the Lisbon treaty, particularly in relation to the extension of the bank guarantee scheme? He stated that the extension of the bank guarantee scheme to non-Irish banks on competition grounds was spurious. He also stated that as a result of the Irish people rejecting the Lisbon treaty and doing our own thing in regards to the crisis in banking, the UK, Germany and France were aggrieved about Ireland's position on the Lisbon treaty and that this contributed to the Commission forcing Ireland to extend the bank guarantee to non-Irish banks. This is a concrete example of what has happened as a result of not passing the Lisbon treaty.

Mr. Bobby McDonagh

I think the Deputy would be better talking to the Department of Finance. It was a volatile time for all member states. As we know, other countries were introducing other measures and what the Government decided to do was approved by the Commission. I would not like to comment further.

Chairman

I thank Mr. McDonagh for his contribution. It will be very helpful for the report we are putting together. Whenever people such as Mr. McDonagh appear before the committee, I am struck by how lucky the country is to have people of that calibre representing us in Brussels and elsewhere. I thank Mr. McDonagh for his contribution and for the continued work abroad.

Mr. Bobby McDonagh

I appreciate the Chairman's comments which I will pass on to all my colleagues both in Dublin and Brussels. If there is anything more I can do to facilitate the work of the joint committees or provide information, please let me know.

Sitting suspended at 12.50 p.m. and resumed at 2.05 p.m.

Chairman

I welcome our three guests and thank them for participating in our work. Before we begin our discussion, I will briefly explain our work and why we have invited the delegates to attend. The sub-committee was set up after the result of the referendum on the Lisbon treaty to consider Ireland's future in the European Union. We have four terms of reference and put together a work module for each. The module on which we are asking the delegates to engage concerns the development of Ireland's policy in response to what is happening in the European Union. We are focusing on social policy and all the issues connected with it. The contribution of the delegates will be reported in the record of the Houses of the Oireachtas and will be used by us to form and draft our report which is due to be published at the end of November.

Each member of the panel will have approximately five minutes to put their points. Their submissions have been circulated for members to read. After the initial presentations, a member from each parliamentary group will have ten minutes to put questions and hear the responses of the delegates in order that we have a dialogue as opposed to a series of speeches. Following this, anybody who has not spoken will have six minutes in which to do so. If anybody wants to make a point, he or she will then have the opportunity to do so. I will do my best to ensure everybody has an opportunity to speak but I need to be tight in terms of the time allowed because we are trying to get through a series of work modules.

I will begin by calling on Mr. Kiely.

Mr. Gabriel Kiely

I thank the sub-committee for inviting me to come and make a presentation. As I stated in my paper, I have a specific focus in looking at the question of the family within the European Union. I read back over my paper this morning and there is an error in it to the effect that the charter makes no mention of the family. It does; I should have said it gave no legal authority to the European Union in dealing with matters relating to the family.

Chairman

I will interrupt because I forgot to make clear our procedures relating to privilege. I am sure there is no need to do so but I must mention them. While members of the sub-committee have absolute privilege, the same privilege does not apply to witnesses appearing before it.

Professor Gabriel Kiely

I hope my paper is straightforward. I try to set out the arguments largely based on demographic trends, why the European Union should have concern with the family. With the recession people might think somewhat differently now, but in the long-term, certainly in terms of the demographic projections, there is need for the European Union to be concerned with the family. However there is no legal or formal responsibility for family in the European Union, which is a matter of concern during the past decade or two. The Commission has expressed concern on aspects relating to family, particularly around the demographics. This has not been addressed at a political level on the basis that there is no legal competence for the European Union to deal with these matters.

Equality is the guiding principle of social policy in the European Union. I raised some issues around this as a guiding principle. I do not have any question with equality as a principle or as a value we should all aspire to. One of the articles of the charter specifically states that all should be equal under the law. That seems to refer to a formal or more legalistic definition of equality and it neglects the complications involved in the use of equality and its application. Without getting too technical, there are many different orientations to equality, social equality, legal equality, political equality. My concern is with the social equality aspect of this principle. If one takes a formal definition of equality, which is treating all as equal, this has certain limitations. It does not take account of differences that exist, specifically differences that exist between people with family responsibilities and those without family responsibilities. I suggest that one might look at what is referred to as substantive rather than formal equality. Very simply, formal equality is a universal standard of equal treatment, whereas a substantive standard of equality is more of a differential standard, one can allow for differences between different groups. One of the articles of the chapter in the charter allows for it where it states, in terms of employment, that one must take account of the different nature of women and their historical context going into the labour market. That is a differential use of the principle of equality. There is some slight contradiction. However, I am arguing in favour of this type of expression of the principle of equality.

Perhaps we should not look at equality but at security, in relation to all individuals. My concern is about families and I think it is a more useful principle than equality.

Regarding the future of Ireland in the European Union, I suggest that including some formal responsibilities for the family at EU level would be beneficial. It would enable the EU to address security for all families without being hampered by a lack of legal competence. If we look at the levels of migration across the European Union, the aging of the population, the low birth rates and the low replacement level, all demographers project quite a stark future in terms of the demography of the European Union. If the European union cannot address the family in relation to some of these issues, it is hampering itself.

Professor Maureen Junker-Kenny

I thank the committee for the invitation to appear before it. Some Irish policy decisions, which are deplored by some EU member states, are being blamed on the EU. The national position on several issues, especially biomedical issues should have been made clear, but these issues have not been debated in the Dáil, unlike the position in other countries. It is extraordinary that since 1997 Ireland's reasons for not signing the Council of Europe Convention on Human Rights and Biomedicine have not been debated, whereas other countries have debated their good reasons for not so doing. No debates have occurred in the public sphere or the Dáil and people have not come forward to outline their positions. We have elected representatives because people must outline their positions.

The U-turn on stem cell research funding, whereby EU taxpayers' money was taken instead of that of individual nations for research, was not communicated. It appears as if the European Union forced Ireland to take a certain line, but the opposite is the case. Ireland left the blocking minority. I hope there will be the necessary accountability in this regard.

More credit should be given to the European Union, particularly for its family policies. The extension of maternity leave in Germany, Scandinavia and France originated in the Union. The introduction of paternity leave which has proved important in Germany is still pending. Other issues include kindergarten places for every three year old and the obligation of companies to release workers with sick children. These are European standards and we should be clamouring for such rights to be extended to Ireland. One should not blame the European Union for clandestine Irish decisions. One should also acknowledge the beneficial provisions introduced by the Union on the environment, etc.

Irish representation in the European Union is symbolic. As a small country, Ireland wants to be represented. Therefore, the loss of a Commissioner is viewed as a considerable insult. If the role of Members of the European Parliament and Commissioners is so important, more national attention should be paid to who is elected or sent. It should not be a protest vote or a matter of sending someone who does not have full backing of or whose policies are not desired by the people. This is a matter for the national political body.

The goal is not to see Irish interests accepted in the European Union. Former Austrian Commissioner Fischler was heavily criticised by Austrian farmers for his policies. He is now respected for his significant expertise. It is important to acknowledge that to let the European project prosper some lobbies must lose in the overall interests of people from the United States doing business in Ireland or Ireland being able to export to 26 nations instead of just one. Others have had to work against lobby groups in their countries on the basis that certain policies were more important nationally. The prevalent aim of scoring Irish goals is short-sighted.

It is acknowledged in the European Union that there is no European public sphere. Measures should be taken to clarify its cultural and religious heritage and how Union contributions have led to changes that would not otherwise have come about. Models of EU funding, how it was spent and what the Union has helped to achieve could be explained. When one of Ireland's cities was the European capital of culture, it was excellent that some of the funding made available was spent on small groups rather than the large winners.

Much could be showcased on a European channel. While it is available in households, it is not well known. It would also be a good way of educating students on Europe and their cultural environment.

Professor William Binchy

I thank the Chairman, it is a privilege to be here. I will speak about developments in Europe, the European convention and the European Court of Justice and their implications for human dignity. That is the value position from which I would start. Human dignity is respected in the Irish Constitution and the Charter. Most people in Ireland would accept the principle of human dignity and respect for it as well as the notion of the inherent worth and equal value of every human being. It is a tremendously powerful value on which to base one's human rights philosophy.

I wish to act not as a legal commentator within the legal world but as a simple legal sociologist. Indeed, most of us are legal sociologists, particularly those of us who are involved in politics. We must look at the European convention and the European Court of Human Rights from a sociological point of view.

The European Court of Human Rights has been a great success over the past 50 years or so but it is a political entity and it would be foolish not to recognise it as such. It faces challenges in that it must deal with a large number of countries and a diversity of values throughout Europe, while maintaining its political acceptance if not political legitimacy so as to allow for its continuity and the wide acceptance of the European convention. It has a difficult political agenda to achieve. It has done this largely by using the device of a margin of appreciation. It has allowed for some degree of diversity of values on sensitive issues.

While it is still possible to talk about the margin of appreciation, that margin has actually shrunk quite considerably in a range of areas, particularly those closely associated with human dignity, namely, the beginning and ending of life. Regarding the beginning of life, the European Court of Human Rights was quite content to apply the margin of appreciation in the sensitive area of protection of the unborn precisely because of the diversity of positions in Europe on the question of abortion. That is clear from the recent decision in Vo v. France, where the court more or less said that each state could make up its own mind as to when the right to life begins. However, I am sure members are aware of the Tysiac v. Poland case, where the margin of appreciation seems to have disappeared. Under the rubric or guise of due process, the decision in that case is one which does take a position, intrudes into the area of the margin of appreciation and shows a degree of proactivity on the part of the European Court of Human Rights which is a source of concern for Ireland. We should note that decision and its implications in terms of the withering of the margin of appreciation. It is fair to say that, on the edges, but nonetheless importantly, the open door case some years previously indicated that the court was willing to intrude on the edges of the protection of unborn life, in a somewhat indirect fashion.

As regards the ending of life, it is fair to say that the court has not yet taken that step. If one thinks of the decision in the case of Ms Diane Pretty, where the court held that she did not have the right to die, it indicates that the court does still respect the margin of appreciation. However, I predict that such respect is in its last days, as it were, in that particular context. It would not be surprising if the European Court of Human Rights were to take a somewhat less deferential decision in that area in the near future.

The European convention is relevant to the European Union because of the penetration into EU law of European convention principles. It is not irrelevant to the purposes of this sub-committee to notice that the court in this area has engaged in a process of reducing the margin of appreciation in areas that will affect human dignity.

Turning to the European Court of Justice and the EU enterprise, from a legal sociologist's point of view, the whole European venture is a deeply political one. It may have noble goals, but it is a political venture nonetheless, based initially on commercial values. That poses a problem in terms of trying to mix commercial values with human rights protection. It is not the place to begin and certainly will not be the place to end.

When one begins with respect for commercial values at the apex of the enterprise, it is very difficult to mix the protection of human rights with that in a satisfactory way. We have noticed that already with the definition of service, for example, and the value of neutrality in the area of the definition of service. The protection of commercial interests is certainly not the place that anyone interested in human rights protection would begin the venture. It is also fair to say that the manner in which the court adopted its analysis of sensitive issues comes against a background of a dynamism that is in the European Union towards ever closer union. This may be denied at times but it is, unquestionably, there. The dynamism is also towards the transformation of an international treaty that does not affect sovereignty into a rolling process whereby states surrender sovereignty and gradually move into another entity. If this entity is not another state, it is either a new conceptual entity or an entity that is becoming a new state entity. From a legal point of view, the difficulty is that this process is constantly denied in terms of its implications. The text is put forward as though it were sacrosanct, when we all know it is not; it is the starting point of the court's analysis, rather than the end.

One must take into account the dynamism of the European Union venture and the commercial values that underlie it. One must also take into account the need to include human rights in EU law, though it is difficult to do so. It is perhaps understandable that the court has adopted the strategy it has on the lowest common denominator of common constitutional values. The problem with the lowest common denominator is that if one is not part of the commonality one's constitutional values will not be protected. The consensus among the powerful nations of Europe on many issues relating to human dignity, though there is not unanimity, is potentially damaging to the protection of human beings. This consensus is certainly in conflict with the Irish perception of human rights protection. There must be a human rights dimension to EU law but, unfortunately, the solution of adopting the notion of common constitutional values is damaging to those who do not share the commonality.

The charter is not a document conceived by a people, the European people, who got together to engage in a process of constitution-making, though that is not to say that a great deal of effort was not made. A great deal of effort was made to create the charter but it cannot be seen as the fruit of a universal, democratic consultation process. It was a narrower process than that, understandably. Therefore, when examining the language in the charter it can be seen to be very opaque, highly ambiguous and it does not fill the gaps, as Professor Kiely mentioned. The situation regarding the family is incredibly ambiguous. When one takes into account the dynamism of the European venture, the language of the charter is open to many interpretations. All commentators have pointed this out, though they do not have axes to grind. They have all pointed to the uncertainty of the remit of the charter. It is a very opaque document; it speaks of wonderful things but it is unclear on key issues.

The drift of my argument is that the European venture is problematic at the moment for countries with a perception of human rights as something that extends to all human beings. What should be done? I suggest Ireland should have self-confidence in this area. We could surrender our protection of human rights for commercial reasons but I do not think people are suggesting this. If we want to protect our understanding of human rights we can. This can be done through a confident assertion of protection for human rights and negotiation with the European Union based on that confidence. This could mean a mode of constitutional change by way of referendum, different from the model used for several previous referenda, in which the constitutional protection of human dignity would be asserted. If Europe has a problem with this it would be good to know before we enter the referendum process.

Chairman

I thank the speakers for their contributions and I am conscious that they have all made points that my colleagues will want to discuss at length. We have until 3.30 p.m. for this session and one hour should be ample to allow people to make their points. While I have never interrupted people to point to the content of their contributions, and I will not start now, we would get much more from the hour we have if we could orientate our contributions towards questions. Otherwise, we will be here until tomorrow finishing off today's business.

Deputy Lucinda Creighton

I thank our guest speakers for attending and apologise for my late arrival. I welcome, in particular, Professor Binchy who lectured me in college. I would like to commence by addressing the final point made by him in his presentation.

The purpose of the sub-committee is to find a solution to break the impasse within the European Union. We are exploring and delving into wider issues in terms of our relationship with the European Union. Dear to us in Ireland are our distinctive values. We are considering how we can best protect them; reflect and address some of the concerns expressed in recent European referenda, in particular the Lisbon referendum campaign, and suggest possible solutions.

The use of a different constitutional wording, if there is to be another referendum on the Lisbon treaty, is an issue in which I am increasingly interested. I would like to hear from Professor Binchy on what precisely he has in mind. The topic at a committee meeting yesterday attended by some of the members present was Christian values within the European Union. One or two contributors suggested a constitutional amendment that would essentially row back from our position, namely, our recognition of the supremacy of European law. I am not sure that would be feasible or that we could say we wanted to be part of the European Union, were ceding competences in certain areas such as the environment, energy security and so on but that we wanted to be able to say Irish law was supreme. How do we reconcile this and deal with issues of concern such as the right to life? The Maastricht treaty protocol which gives a certain degree of security to the Irish position may need to be elaborated on. I agree with the point that Ireland should have the confidence to enunciate and stand over its position and assert it at European level. However, would Professor Binchy propose a different wording on, say, the role of the family? Would he favour a new constitutional amendment to bolster the position adopted in the Constitution or is he speaking of a more wide ranging amendment such as that proposed by others that would essentially back-track on what has been the constitutional position since 1973, that in areas where the European Union has competence, it is supreme over Irish law and the Constitution? I am also interested in hearing the views of our other guests in this regard.

Professor William Binchy

In 1973 there was no difficulty in drafting the amendment to the Constitution. As drafted, it gave right of way to European law because at that stage what was coming through the door was all economic and largely beneficial to Ireland. Therefore, there was no problem in opening the door wide and letting in all European measures. However, times have changed during the past 35 years. What is now being proposed is not only economic but an elaborate combination of economic and commercial matters and human rights and constitutional norms which are radical in the context of their relationship with Irish constitutional norms. We kept the door open during each referendum and used the language associated with a complete right of access of European law. Progressively, however, this has become more dangerous. Understandably, we began to notice protocols coming into play in order to protect the flow of European law because of its potential and impact on Irish constitutional law.

We are at a point at which, by virtue of the content of the Lisbon treaty, the unknown and, frankly, unknowable content of the European charter, and the dynamic progression of jurisprudence within the European Union and the European Court of Justice, the entity which constitutes European law has been transformed. Consequently, when we try to draft an amendment for our referendum, it is worth remembering this would be part of Irish constitutional law. We still have the Constitution that we are amending and this is still an independent country. It is worth remembering that it is not a sub-department of the European Union. We have an independent constitution and it is up to us to amend it as we wish, consistent with prudence and our broader political and economic needs. However, it is our constitution and when amending it, we can do so in a manner that will protect that which we wish to protect. I would have thought this would be the sensible thing to do in the circumstances.

As for the precise mode of drafting the amendment, the minor point is that while the practice of opening the door and letting everything come through, subject to a protocol, worked 35 years ago, it is not the model to be used today. The normative question is how does one draft an amendment that would seek to achieve what one is trying to do. The two prudential questions are to what extent this would create a fuss in the European Union and to what extent would there be political difficulties in the Union. However, rather than beginning by simply asking what the European Union wants and then doing it, which sometimes has been a feature of the political discourse, I would have thought the logical sequence would be to ask what we want, how we were going to achieve it on a prima facie basis and how we would achieve it in our negotiations within the Union.

I do not believe members would thank me for drafting the amendment today, although I will forward to the sub-committee a subsequent memorandum giving an indication on how it might be done. However, I suggest that concentrating on the notion of human dignity, a core notion contained both in the preamble to the Constitution and the charter, would be a good starting point. In our amendment we could interpret what we and the international human rights instruments mean by human dignity — the inherent value and equal worth of every human being. That would be a non-contentious definition. We could state this is what we mean and then, consistent with respect for human dignity, take on the Lisbon treaty with that interpretation. If the dynamic of European jurisprudence were to move away from that definition and, for example, deny recognition of the human status and dignity of certain human beings in the early stages of life or deny human dignity at the end of life, in such circumstances we would have the Constitution and constitutional clarification. It would be an anticipatory interpretation of the Constitution. If we are wrong in this regard, it would be nice for the European powers to tell us that this is not actually what they mean by human dignity, that they mean something quite different, which does not respect the equal worth of every human being. It would be better for us to know that now, rather than to surrender to the language of ambiguity and diplomacy and then find out X years down the stream that this is not the interpretation of the European Court of Justice. This is the structure of approach I would use in drafting.

Chairman

I will briefly interrupt Professor Binchy to ask his colleagues to make a comment in this regard, if they wish.

Professor Maureen Junker-Kenny

While I would agree with much of what Professor Binchy said, I would not put this question to the European Union. Germany has an embryo protection Act, as do other countries outside the European Union. Moreover, Irish judges decided in the ward of court case in 1995 what it did and did not mean. Why can Ireland not come up with an embryo protection Act and ask, in the case of State institutions in which certain research is being carried out or otherwise, what is the view on pre-implantation genetic diagnosis? Is it against human dignity, as many countries have decided? This is an Irish matter in the first instance. My point is that each country can have stricter laws than European laws. For instance, the Netherlands forbids experimentation on animals. It has also opposed the patenting guidelines for that very reason. Consequently, one always can have stricter laws in one's own country. My worry is that matters are being directed at the European Union where there is a variety of positions and different legal frameworks. This does not simply pertain to half-hearted measures such as President Bush forbidding the use of public money for stem cell research, whereas private money could be invested in it. If it was a case of protecting embryos in vitro, it would have to be ruled out, as it is in other countries. Consequently, I find that much energy is misdirected at the European Union, which should be devoted to the Irish legislative process. We should find out what is the view here, although we may not be happy with it. However, it is not the European Union that should be blamed.

Professor Gabriel Kiely

I agree with most of what Professor Binchy and Professor Junker-Kenny stated. However, this is somewhat outside my area of expertise. The charter constantly refers to the principle of subsidiarity in the context of social policy. It is similar to what was said about doing it in respect of all areas of social policy — a matter with which I would have some difficulty. However, that is the principle — it is in the preamble and is one of the articles — underlying social policy and I do not understand why it might not be possible to do something similar in respect of other areas of the law.

Chairman

Will Senator Mullen indicate if he will take the entire ten-minute slot allocated to the Independent group?

Senator Rónán Mullen

I expect to. I hope my colleague will still speak to me if I use all ten minutes.

Senator Déirdre de Búrca

I must resign myself to the fact that I have things to say but——

Senator Rónán Mullen

The Senator could strike it lucky if I decide to be brief for a change.

Chairman

That was very gracefully done by Senator Mullen.

Senator Rónán Mullen

I welcome our guests and compliment them on their fine and thoughtful presentations. I listened to Professor Junker-Kenny's comments with enthusiasm and interest. I heard her say many of the same things when we met during the course of a debate organised by the European Commission. Is it fair to state, in respect of Ireland's decision not to join the blocking minority——

Professor Maureen Junker-Kenny

To leave it.

Senator Rónán Mullen

Yes. Had there been no other countries willing to form a blocking minority, is it correct that we would have been faced with a situation where, regardless of the position we had adopted, the EU would have decided to use the common fund to finance embryo-destructive research in jurisdictions where such research is legal? Whereas Professor Junker-Kenny is correct to state that a domestic decision was taken not to fight the good fight on that occasion, had matters been otherwise Ireland might have objected but might not have had the support of other countries to form a blocking minority. In such circumstances, would there be EU funding for embryo-destructive research?

Professor Maureen Junker-Kenny

No, it had been part of a previous blocking minority and then the Irish position changed. That was to the dismay of the other countries. If there is a minority large enough to block something, then it will not happen. Ireland is not yet a net contributor and, therefore, it is not our money that is being used.

Senator Rónán Mullen

My point is theoretical in nature and its basis is that if other countries were not willing to form a blocking minority, one state acting alone would not have been able to stop the use of EU federal funding for embryo-destructive research in jurisdictions where it is legal.

Professor Maureen Junker-Kenny

No, but the point is that these countries had formed a blocking minority of which Ireland was a part. Ireland then decided to change its position. It was not made obvious in this country that this was a change of position.

Senator Rónán Mullen

Did Ireland's resiling from the blocking minority contribute in part to the situation that has arisen in UCC, where some academics, in the legal vacuum that exists, are seeking to carry out embryo-destructive research, directly or indirectly?

Professor Maureen Junker-Kenny

Failure to put it to a Dáil debate and to follow up on the various recommendations put forward by the national ethics committee, and so on, are to blame. In other countries, elected representatives made the decision and then those in universities were in a position to either carry out research or not carry it out because they were aware of the legal situation. That did not happened here and people are now operating in a vacuum.

Senator Rónán Mullen

I thank Professor Junker-Kenny. A number of people have come before the sub-committee in recent weeks and made the point, sometimes in an extremely political way, that the people who were concerned about abortion in the context of the Lisbon treaty effectively misled others by not having regard to the Maastricht treaty protocols. Is it Professor Binchy's view that the issue of abortion is completely irrelevant in respect of this matter? Are there areas in respect of which the EU's operation of its powers or possible adventurous decisions on the part of the European Court of Justice could potentially impact on future Irish legislation in this area?

Professor William Binchy

I will not repeat what I said ten minutes ago. However, the short version is that within EU law structures and the European Court's jurisprudence and approach to law, there are dangers. There are dangers to every aspect of every human activity and law is no exception to that. The idea that there are risks and dangers in a legal process is, in one sense, a banal proposition. However, dangers exist within the EU law system. When one takes into account the strong influence of the European Convention and the indicators from the European Court of Human Rights in the Tysiac case that it is becoming proactive in this area and when one takes cognisance of the commercial values which underlie European Union law so that service is treated as a value-free concept — it just depends on where that service happens to be lawful — and the implications in EU law of respect for service and the right to access such a service, it is correct to state that there are serious concerns within the EU legal sphere in respect of abortion. Politics aside, it can be viewed as the product of an international treaty and constitutional changes at national level.

Senator Rónán Mullen

Does Professor Binchy believe his view is different from that of Professor Junker-Kenny? Does he agree that some of the challenges may come from domestic legislation and that, not withstanding what we might seek to do at domestic level, there might be circumstances where decisions of the European Court of Justice or initiatives from the European Commission in its areas of competence might nonetheless impact on Ireland?

Professor William Binchy

I agree with Professor Junker-Kenny entirely that there is plenty of work to be done in Ireland and that the European Union is not getting in the way. We must do it. Her critique of the courts is correct. It is not as if one is happy with every single judicial interpretation. It is hard to be happy with the judicial interpretation in this area and I say this with the greatest of respect to judges. However, the judicial interpretation of the value-based provisions in the Constitution affecting human dignity have not been fully understood. There is plenty of work to be done in Ireland, but the problem with the development of European law is that there will be areas in which we will be inhibited in what we can do, either financially or substantively. Certainly at European convention level, the prospect of a finding against Ireland is real if the court maintains its current dynamism. It is not a question that we will be free to do anything in terms of domestic policy. I note that Professor Kiely mentions subsidiarity which is referred to in the charter, but like the margin of appreciation when it comes to crunch issues where there is a strong value debate, subsidiarity gives way.

Senator Rónán Mullen

Professor Binchy is probably aware that in recent times the former President of Germany and chairman of the European Court of Justice, Mr. Roman Herzog, has been very critical of just how adventurous the European Court of Justice has been. Professor Binchy has described a situation where the European Court of Human Rights has become more activist and tended to give less leeway to the "margin of appreciation" which, in layman's terms, means less room for member states to decide their own destiny within the context of the law. Given Mr. Herzog's concerns, I imagine that would lead people to want to establish a greater role for the Irish courts in the interpretation of our constitutional values.

One of the issues that has arisen — I put this question to other lawyers previously before the sub-committee who gave nuanced and varied answers — is whether it would be possible for Ireland to establish a constitutional filter, whereby it would not reject any areas of EU competence but nonetheless laws coming from the European Union would have to be compatible with certain fundamental rights provisions of the Constitution as interpreted by the courts. Given the much cherished doctrine of supremacy at EU level and the fact that the German courts have pronounced on this issue to some degree, as have the Polish and Spanish courts, I understand, does Professor Binchy anticipate a big fight were Ireland to seek to establish such a constitutional filter?

Professor William Binchy

There are two notions of supremacy in our discussion. Deputy Creighton mentioned the notion of supremacy of EU law as conceded by the Constitution. That is the way amendments have been drafted during the years. There is also the doctrinal notion of European supremacy within the EU doctrinal jurisprudential system. Part of the self-belief of the EU law system is that it is supreme, but it is supreme in a rather interesting and novel way, in the sense that the European Union is not a country. It has moved beyond a treaty in the sense that the progressive treaty inter-relationships have certainly compromised sovereignty, but doctrinally if one is moving away completely from the politics of this, one could say we still have a product of an international treaty and individual constitutional change at national level.

At a political level, it would be difficult to argue against the notion of European supremacy within the EU doctrinal system, but this depends on the level of national self-confidence. Germany is happy to assert its self-confidence because it has a sense of its constitutional independence. There is no question of trying to challenge the core of the EU system. My proposed amendment on a gentle interpretation should not cause problems. If it does, we should be considerably alarmed.

We are not discussing punching the European courts or the EU system in the nose. Rather, we are asking for clarification as to whether we would take on more via the Lisbon treaty than we want. It is a question of interpreting the Constitution when amending it. The referendum process is a constitutional rather than an EU one. We have control over it. I and others have suggested that, in amending the Constitution, we should gently interpret what is involved instead of using the open door system. This should be put to the European authorities so that we could learn if they have any problems with it before engaging in the process.

Deputy Thomas Byrne

Like Deputy Dooley yesterday, I want to know whether Libertas has contacted us about appearing before the committee.

Chairman

We are in discussions.

Deputy Thomas Byrne

It has responded.

Senator Déirdre de Búrca

Yesterday, I participated in a radio programme alongside a member of Libertas who publicly stated that this committee had not yet invited Libertas to attend. I corrected him and stated that we had issued several invitations.

Chairman

I will take this opportunity to state that we have invited Libertas and are in discussions to include it in the final part of our work programme.

Deputy Thomas Byrne

I welcome our guests. I have often found it difficult to disagree with any of Professor Binchy's statements in recent years. He makes a good case, but I disagree with him. He stated that the Charter of Fundamental Rights is not a popularly created document, is opaque and ambiguous and does not fill in the gaps. Could the same not be said of Bunreacht na hÉireann, which was devised by Mr. Eamon de Valera, Archbishop McQuaid and others? They would not have foreseen the constitutional permission of contraception, a right to privacy or other matters in which we place value. For example, they would not have foreseen the X case. This issue relates to Professor Junker-Kenny's point. Mr. Anthony Collins, SC, stated that we have placed too much value in the Constitution. Given that it is an expression of the will of the people, the latter is supreme. Does Professor Binchy have a comment in this regard?

Yesterday, I attended a meeting with the Iona Institute at which a speaker, who will address the committee later, suggested that a Maastricht-type protocol would be necessary to cover Articles 40 to 44, inclusive, of the Constitution. At first glance, it was an interesting point and may be similar to Professor Binchy's proposal on an amendment giving greater protection to what he views as constitutional values. As I stated yesterday, however, we are protecting values with which many people at the Iona Institute might not agree.

It is a question of how constitutional values are interpreted. Natural law was used in the Supreme Court to allow contraception, but it is ironic that Pope Paul VI used natural law to prohibit it. Ireland has a history of judicial activism, most of which has been good and popularly accepted. However, we have fears of judicial activism in Europe. While we have some examples of it, I wonder if it is being blown out of proportion. Perhaps the point made by Professor Junker-Kenny is most relevant, namely, that most of this is a matter for ourselves. People have concerns about the family but Professor Kiely has pointed out that some of the EU interventions concerning the family centre on its protection, including the recommendation that social security systems recognise the unpaid work of parents who remain at home, which is also Fianna Fáil policy. That policy could be written about in any of the Catholic press here, but it is a European Parliament initiative. It may be the case that there is too much fear and speculation regarding Europe's engagement on these matters and not enough soul-searching by ourselves. Having said that, the fears people have are genuine.

If Professor Binchy has time, it would be valuable if he could give us a brief memorandum on a constitutional amendment. Certainly the constitutional amendment that was proposed the last time was disastrous. It was far too complicated. Even I, as a trained lawyer, had to read the relevant law books and associated documentation alongside the actual amendment. Any amendment should be clear, explicit and easily understood by ordinary people. They should be able to see exactly what is being inserted in the Constitution. It would be very helpful if Professor Binchy could provide a memorandum on that. We must do something to allay the fears people are expressing. I believe those fears are misplaced and the problems lie at home, rather than abroad.

I ask for the witnesses' views on my point regarding the Constitution and what was said about the charter applying to the Constitution. Should the Maastricht protocol be extended to all of the rights provisions of the Constitution? Are we overplaying the issue? We signed up to the European Court of Human Rights long before the EU attached itself to it, as allowed under the Lisbon treaty. I know that the European Court of Justice has examined the ECHR and some of its decisions. Should that not be viewed as a positive thing? Perhaps I am wandering off the point here——

Senator Rónán Mullen

Just a tad.

Deputy Thomas Byrne

Over the years the European Court of Justice has applied constitutional laws as best it could, when there was no charter there for it to work from or explicit human rights provisions in the various EU treaties. It has still gone the extra mile to apply human rights protection in its interpretation of some EU provisions. Has that not been positive?

Professor Maureen Junker-Kenny

If the Lisbon treaty is ratified, the European Court of Justice will be secondary to the European Court of Human Rights and the EU, as such, will sign the human rights convention, which it has not done so far. To date, only individual countries have signed the convention. Then there cannot be contradiction between individual cases. That is a good idea. Nobody in Ireland would be ready to leave the 47 countries of the Council of Europe, which has its immediate legitimacy from human rights. One should educate the public on the difference between those two bodies, that is the one encompassing 47 countries versus the one encompassing only 27. It should be pointed out that the 27 countries will be subordinated to the human rights convention, which is a good thing.

It should be part of the creation of a European public sphere that one hears about the very different positions and policies in the different EU countries. Up to now, what is only known about is those countries which are English speaking, which is a big drawback.

Deputy Thomas Byrne

We also need to know about some of the similar positions of other countries. There are other countries in the EU which share our concerns on social issues, corporation tax, neutrality and so forth. It is not just the differences that are important, but the common experiences also.

Professor Maureen Junker-Kenny

Yes. What Ireland reads is mainly the English-speaking legislation from Australia to Britain and we have no idea of the very varied debates and counter-positions that exist in continental Europe. That is one of my pet issues, being half-Irish and half-German. It is something that should be part of a channel of information, a mutual finding out about each other, which will enable the Irish electorate to take positions on various fronts. It is not just about biomedical questions, but about families and unconditional acceptance of children by their parents, which is the reason pre-implantation genetic diagnosis is forbidden in so many countries, and so forth. One must make up one's own when one sees such a variety of legislation on these matters.

Chairman

Would Professor Kiely like to come in on that point.

Professor Gabriel Kiely

I rather like the fact that the charter is ambiguous. At one stage it states absolute rights and at another it says "maybe not in this case". I do not find this a problem necessarily, though it may present problems for judges and lawyers.

There was much concern in the approach to the referendum, as I mention in the paper, relating to individualisation, though this was not addressed by the media or politicians through family related questions. Many families with full-time carers who are not in paid employment outside the home — they may care for old people or children — were concerned by Charlie McCreevy's introduction of individualisation. He promoted this as a Minister here and he apparently promoted it in the EU also. There was considerable concern that further individualisation would ensue if we ratified the Lisbon treaty, though there is nothing to support such a conclusion. The matter was not debated and nobody said "this is not going to happen and this is not what we are voting on". I can find no EU proposals for individualisation.

Professor William Binchy

Briefly, I would agree with Deputy Byrne in terms of the dynamism of judicial activism in the Irish Constitution, several other constitutions and at European level. The point on the democratic source of the charter was not to challenge its legitimacy but to point out that it is not rooted in the common consent of the people of Europe. It was done through a delegated system rather than through a voting system. At least the Irish Constitution was voted on by everyone in the country — it only passed by a small majority but it was voted on. The European charter has not been voted on by everyone in the EU and there has not been debate at local level. This may be the case through necessity — perhaps such debate is not possible among hundreds of millions of people — but it is a fact. It does not have the cultural source that would make it more easily acceptable.

Just for clarification, this is not a question of Ireland versus Europe or us versus them. It is too easy to see the debate in those terms. There have been a great deal of developments in European law that have been marvellously beneficial for Ireland. I welcome the social provisions in the charter and feel they will strengthen existing protection in the area.

I have been talking about areas of genuine concern and they are life and death issues. Professor Kiely said that a little ambiguity is alright, and I understand his general proposition, but if one's life depended on this one's focus might sharpen. We are talking about human rights at the level of life and death so they are important, though they are difficult, controversial and internationally debated. I am not suggesting this matter is easy. The Irish view, though it is contested, is that human rights and human dignity apply to everyone on an equal basis, without exception. This value may be compromised by a development in Europe that has come from perfectly decent judges trying to do their best with a difficult agenda. We are not talking about evil people or good and bad. We are talking about the important value of human dignity. If this value may be compromised by a constitutional change it seems prudent to address it before the event.

Deputy Joe Costello

I thank all the delegates and apologise for not being here earlier. My absence was unavoidable. I will ask some questions that I hope have not been dealt with already.

An inordinate number of people addressed this sub-committee on sensitive social issues compared to the other issues. The delegates are not the first to come before us on these matters. There seems to be a great deal of talk about perceptions, suspicions, concerns and dangers and this is what life is all about. There is no such thing as a perfect life. There is no such thing as a perfect treaty.

Professor Kiely set out a good framework for these sensitive social issues. In other words, the basis for Community action is that the family assumes an essential role and place in society and, therefore, should be protected by specific measures adopted in recognition of the service it renders to society.

As Professor Junker-Kenny stated, the sensitivity of issues is dealt with in member states and any member state can have stricter legislation than European law. Essentially, what is being said is that it is too easy for us to resort to the courts and other mechanisms to solve difficult and complex problems and that all of these issues should be dealt with by us, the public representatives in Parliament elected to do a job and translate policy into legislation. Are we barking up the wrong tree, attacking the wrong target and trying to blame those who are not at fault? In this respect, we need only refer to the Lisbon treaty, an absolutely wonderful statement of values and principles that are second to none. It provides for absolute protection of the status of all religions and a charter of fundamental rights selected from the best international, European and national statements of human and political rights. It is easy to suggest matters may work out differently when tested in the courts. It is a given that when something is tested in the courts, one is never absolutely sure what the interpretation will be.

The basic principle under which all of this is presented to us is second to none. The European Court of Justice will be secondary to the European Court of Human Rights which we have incorporated into Irish law. Professor Binchy appeared before a committee in 2003, at which time we criticised the then Minister for Justice, Equality and Law Reform for not being more thorough and comprehensive in the manner in which he had transposed into Irish law the European Convention on Human Rights. Is there scope for the European Court of Justice to undermine interpretations in the broad area of human rights, justice and the ethical issues currently being discussed? The old saying, perfection is the enemy of the good, comes to mind. We would all like to get exactly what we want in this case.

My objective is to see what we can do to protect workers' rights. We must be specific about what we can do to enhance these rights in the context of the European Union. We cannot have a constitutional court similar to the one in Germany. We have the Supreme Court which provides for constitutional measures, as does the German constitutional court, but it is much broader. We cannot replace it with a constitutional court.

If we look at the total package, my perception is that the fears expressed are unfounded. Unless someone can state categorically that there is an agenda on the part of the European Union to introduce something contrary to our values, I cannot believe other than the opposite is true, namely, that there is the promotion of the best family values, the best principles of human rights and the putting together of a European Union that will be effective in the manner in which it carries out its business.

Professor Gabriel Kiely

I will make one or two comments in this regard. I revert to my point on ambiguities within the charter. For example, Article 24, which discusses the rights of the child, refers to the child's best interests. Everyone knows that legal people will ask what the best interest is, who represents it and who does not. It is better to state what it is rather than to be tied down in trying to define every piece of it because often the more one defines, the more one leaves out. Consequently, such a statement, ambiguous as it is, at least aspires to protect, if nothing else.

I agree there was much fear of the unknown during the last referendum. I gave the example of one area of the unknown, namely, the protection of families in respect of individualisation of the taxation and social welfare system and how negative consequences would arise from that, even though there was nothing there to suggest that. While it was not debated, it was in the sub-current somewhere.

Professor William Binchy

Deputy Costello made several good points and perhaps did not make a couple of points. He made the point that essentially, constitution-making is like making a product of work, such as a car. He correctly noted that much energy has gone into this and that the best models around the world have been looked at. Moreover, I agree with him that what has emerged is pretty good. Therefore, he suggests that to be finicky or concerned about a theoretical lack of perfection is a waste of people's time and we should simply get on with our own domestic policy. I believe this was the thrust of the Deputy's comments and I agree with much of it.

The only point at which I take a somewhat different view is that it is not simply a question of perfection although I agree with the Deputy that no charter or constitution can be perfect. Rather, the question is whether it contains elements that are likely to come back in a manner that is not announced now but nonetheless is inherent in the document itself, and which will have a detrimental outcome about which we should be aware and should think about now. The point really is whether there are detrimental elements, side-effects or noxious elements that may emerge in the future. It is prudent to seek to identify and anticipate them and neutralise them at this stage. This really is what the analysis is about. It is not in any sense contradicting the magnificence of the overall achievement.

That said, Professor Kiely mentioned the provision regarding children as an example to show how ambiguities can raise important questions. While it is not what I intended to discuss today, I will discuss it briefly. The provision pertaining to children in the charter is quite different to the UN Convention on the Rights of the Child. The document stresses welfare, rather than the rights of children. Consequently, this raises an immediate question as to whether there is a dissonance between the charter and the UN Convention on the Rights of the Child, which is strongly rights-based and contains a number of controversial rights including, for example, a right to freedom of expression and a right to freedom of religion. The charter refers to welfare but does not refer to rights. This is not simply being finicky and looking for perfection. This is raising a legitimate question on what the import of this document will mean in specific human contexts. This is the small point I would make in this regard.

It is a question of identifying what might be wrong with the charter. I define "wrong" as being an element that contradicts a human rights value, which in Ireland has very substantial support. There is a great deal that is good about the charter and which any sensible person of goodwill would welcome. I have welcomed it positively. The Deputy's point that everything is dangerous is entirely reasonable and I made that point before he came into the room. Everything in life is dangerous. Staying in bed all day is a remarkably dangerous activity. We cannot avoid danger in our human lives. However, the large point is——

Chairman

I must hand over to Professor Junker-Kenny, after which I will invite Senator de Búrca to contribute.

Professor Maureen Junker-Kenny

I agree that many matters must be debated at home and that was the point I was trying to make. In addition, the EU is in global competition, which is part of what was stated in the Lisbon treaty. One must be watchful to ensure this does not lead to the lowering of standards. I refer to bio-medical issues because they highlight how we really think about human rights. The reason Germany did not sign the Council of Europe Convention on Human Rights and Biomedicine was there was not enough protection for either embryos or people who were not capable of consent. If we wanted to test medical products on people who, because of intellectual disabilities, could not protest, that would be one reason not to sign it.

In Austria — Ireland could take this on board — the protection of the rights of the child extends to knowing the identity of one's genetic parents. At the age of 16 years a child in Austria can discover the identity of his or her genetic father. There is a need to have this written down because it takes rights seriously, even in the context of making sperm donors think twice as to whether they want to have an obligation placed upon them. There are ways in which countries flesh out these individual rights. Sometimes this means not signing something because not enough provision has been made.

On global competition and the likelihood that countries with lower ethical standards might be able to test their products elsewhere, it is important to hold the debate in the public sphere. That is also where the value communities come in. I agree with the point that the value communities, including religious communities, have an unprecedented legal status in the sense of their right to collective religious freedom and the right to be in the public sphere. That is not the laïcité model. If that impression is invoked, it is totally the opposite. The Lisbon treaty protects the right to public representation of collective religious identities much better than before. One should make clear that the churches, NGOs, etc., will be given the opportunity to be present.

Senator Déirdre de Búrca

I thank our guests for their presentations. I am particularly interested in the issue of the family which arose on many occasions during the debate on the Lisbon treaty. I was struck by the different emphasis in our guests' presentations, particularly that of Professor Kiely. Is he is of the view that the Lisbon treaty makes little reference to social policy, that the European Union has no formal powers in the area of family policy and that there is an absence of legal competency in this area? Perhaps I misunderstood what was said, but I am sure he indicated his desire for the European Union to develop a more coherent policy on families.

The point was also made that in the face of certain challenges and demographic realities such as sustained low levels of fertility and increasing longevity, the European Union would be obliged to encourage either significant migration or immigration. I understood from his presentation that Professor Kiely was suggesting the Union should perhaps develop a more coherent family policy. This raises the issue — I suppose it did so during the Lisbon treaty referendum campaign — of how the family is defined. In the Constitution it is conceived of as a union between a man and a woman and includes their offspring. This is reflective of the religious and cultural background in Ireland. However, we cannot assume that this understanding of what constitutes a family would be shared by other European member states where different legal and cultural traditions have developed. If that is the case, any competence the European Union would take on in the area of the family or social policy would have to incorporate a definition of "family" that would be broadly acceptable to all member states. If there is a desire on the part of this country to protect its constitutional values, it must fulfil that desire. However, difficulties would arise for other member states if we tried to promote our understanding or sense of the family on a broader European level. What would be our guests' reaction to that assertion?

Chairman

The Senator has three minutes left.

Senator Déirdre de Búrca

Professor Binchy referred a lot to the Charter of Fundamental Rights and some of the dangers or possibilities inherent in it about which he is concerned. I do not have a legal background, but it has been put to me that the charter is a restatement of existing rights which have emerged from ECJ and ECHR case law and the constitutional traditions of member states and, therefore, there is nothing new in it. Are there grounds for significant concerns if it is merely a restatement or the making more visible of existing rights that can be enjoyed by European citizens?

I agree with Professor Junker-Kenny about the absence of a debate in this country on embryonic stem-cell research. We do need to debate this issue, particularly because our Constitution protects certain values, I am referring for example to the constitutional protection of the right to life of the unborn. It makes sense to have a lively and comprehensive public debate on this issue, which we have not had. I would welcome any suggestions on how that might be done or on the role politicians could play in that process.

Chairman

I will go to each witness in turn and then allow my colleagues to put one final point if they wish. I would appreciate it if people could be as brief as possible as I want everyone to have an opportunity to make one more point.

Professor Gabriel Kiely

I thank Senator de Búrca for her comments. I agree with all she said except my end point was not to advocate a super-European family policy. I can understand why one would take that interpretation because it seemed like that was going to be my end point. However, that was not the case. The end point was to give the EU some legal competence to deal with family matters. For example, the parental leave directive was not a family policy, it was a labour law policy. If it was a family policy it may have been framed quite differently. However, the Union has no competence in that area.

It might, for example, have taken account of those in unpaid work within the home or other areas of employment. However, it was purely part of labour law and not part of family policy. I am suggesting that we give the EU or the Commission some legal competence to deal specifically with family matters but I would be opposed to the bringing in of a European family policy which applied across the board.

As to the Senator's point about definition, I agree that it is a case of what definition of the family one uses. I would not be advocating a definition of the family based on the Irish Constitution. As I said about definitions, this is probably the most difficult of areas because the more one tries to define the family the more one excludes groups who define themselves as a family.

Professor Maureen Junker-Kenny

As regards parental leave being defined by labour law, it might be a good thing that companies are forced the play their part in the future wealth of society. That is an important part of it but it is missing up to now. Elsewhere, companies provide kindergartens and so on. We need to make the point about paternity leave, for example, so it is not just a risk for women to have children. It is equally the father who might take nine months off work. That has made a big difference.

Equally, if one does not send one's child outside the home in the first two years, it should be possible for the carer in the home to get the money. That is the policy in Germany. It makes a difference with regard to demographics and the justifiable wish to combine work and family and to make that more possible than it is in Ireland, where people commute for long hours and hardly see their children. Ireland can adopt best European practice in this area. If it was interested in doing so it could.

My other point refers to stem cells. It would be deplorable if this involved experts or the courts deciding matters without citizens being able to get involved in the debate. There is less protection of the unborn in Ireland than elsewhere because in at least one court judgment the unborn has been identified as the unborn implanted on the 14th day. There is no protection before that, so it leaves the field open. No citizens or Deputies have made the decision. It is a real problem if the courts are making the decisions. It should not be a case of experts deciding for people.

Professor William Binchy

Senator de Búrca asked a good point about whether the charter covers the same territory as previous conventions and constitutions, making it a reiteration. The answer is "Yes" in one sense, but "No" in another sense. The ordinary rules of interpretation will interpret every provision in this document harmoniously. Given that there is some new language and certain rights are expressed in new ways while others are not expressed as fully as in other conventions, we have text that must be interpreted afresh against a background of a dynamic institution in which there are human rights and commercial agendas. This is what makes interpreting the document difficult. Neither the strongest enthusiast nor the strongest opponent of the charter would say its meaning is clear. Of necessity, all documents are unclear, but it is particularly difficult to read this document against its political and economic background.

Chairman

I will allow people to make an additional point, as our guests for the next module are waiting. Could Professor Binchy supply an example of where activism in the European courts has undermined the dignity of human life in Ireland?

Professor William Binchy

Yes, the cases that dealt with abortion information, not so much in terms of the outcome which people of goodwill can debate, but the manner of analysis at a European level, treating abortion as a service in a value free way. That in its actuality and in its potential has undermined the protection of human life in Ireland. The European Court of Human Rights provision which took the view that Ireland did not care much about the issue because of the manner of its legal implementation was a misunderstanding of Irish law. On that specific area, both those decisions undoubtedly reached with goodwill, have had a subversive effect.

Chairman

Next will be Deputies Thomas Byrne and Costello and Senator Mullen. Each has a moment to make his point before we wrap up.

Deputy Thomas Byrne

Professor Binchy knows a great deal about the charter, which we have read. During the referendum, it was mentioned that the charter could lead to the detention of three of year olds or introduce the death penalty despite actually prohibiting it. People referred to some of the explanatory notes to the charter and the European Convention on Human Rights. What are Professor Binchy's opinions on these assertions?

Professor William Binchy

I have heard them previously, but they strike me as remarkably odd.

Chairman

I apologise, but is someone's mobile telephone switched on? There is a clicking in the recording system. If the telephone is on, could the person please turn it off?

Deputy Thomas Byrne

The assertions strike Professor Binchy as being remarkably odd.

Professor William Binchy

The final two interpretations, yes. However, one should not argue that prudent and cautious concerns have no validity because extreme and foolish predictions have been made about the charter.

Deputy Thomas Byrne

Libertas, which views itself as a mainstream organisation, made the assertion about three year olds being detained.

Professor William Binchy

I would need to know more about the context of "detention", but the sentence as worded seems stark.

Deputy Joe Costello

One might say that the charter is uncharted waters. It attempts to provide a statutory underpinning for the EU. Those of us who view it positively ask for the benefit of the doubt and state that the charter is coming from the right direction with the requisite values and principles. However, others see the dangers without highlighting any specific danger. One can view the charter positively as enhancing the right to life.

The only ethical values discussed by the committee are those pertaining to the Catholic church. None of the other religious groups have attended. While I am not stating that no one on the panel holds other values, the only witnesses in question have been those who have presented the opinions of the Catholic church. In religious terms, there are different opinions on ethical matters, the family, abortion and sexual orientation. There are a lot of issues on which there are enormous differences. There are also enormous differences between member states.

It is impossible, whether we like it or not, to provide a mechanism for all 27 member states that will reflect any particular set of ethical values. We can certainly provide ethical guidelines and then leave it to individual member states to take responsibility for ensuring that their own laws are appropriate for their citizens.

Senator Rónán Mullen

I agree with Deputy Costello when he points out that the issue is the enormous differences that exist between and within member states. That is why the argument for returning the final say to the Irish Constitution and the Irish order is so strong.

I noted what Deputy Costello said earlier regarding the European convention which, we should remember, has been incorporated at sub-constitutional level in the Irish context, meaning that the Irish Constitution still reigns supreme. That does not necessarily mean that we are putting all issues to the Irish courts, although I may be wrong in that interpretation. We are saying that the Irish courts would have the final say and that the Irish Legislature has the freedom, in dealing with the European legislative corpus, to decide what is applied, depending on how it sits with our constitutional values. In the event of a doubt, then, we are not left standing before the ever more adventurous European Court of Justice but rather the Supreme Court of Ireland. That is the nub of the issue.

Professor Maureen Junker-Kenny

I wish to underline that when we talk about human dignity, we mean it in a humanist sense. Different values and communities contribute to that but the first sentence of the preamble to the German constitution holds that human dignity is inviolable. Every item of positive law is subordinate to that. There is a moral sentence at the very beginning of the basic law. Ireland also has a Constitution.

In Europe there are two types of ethical argumentation. One is very empirical and utilitarian, while the other is deontological. Ireland is largely unaware of the fact that it belongs to the deontological tradition that does not simply judge by consequences but has a sense of moral obligation from the outset. That is where the philosophical debate lies.

I do not argue in the public realm with specific religious assumptions. I could argue that being made in the image of God gives one dignity. Equally, I can argue that human freedom is the basis of human dignity. That is why we must have certain ways of assuring that this gets translated. I am not happy with being seen as putting forward a very particular agenda. This is about human rights. In the various countries, it was not just believers who voted for certain things. It was a parliament that was totally pluralistic. In Ireland we have not got that far in terms of having the Parliament decide on these matters. It was not just specific faith groups pushing an agenda. From the Greens to the feminists, they were united on certain aspects. That is how these majorities came to be.

Professor William Binchy

I would echo what Professor Junker-Kenny has just said. We have had so much religion and religious discourse and division in Ireland over the last several centuries that when we address issues of human rights we are new to it. We expressed so much discourse in religious terms prior to this. The interesting debate, which is relevant to today's proceedings, is how one addresses human rights issues without the dimension of religion or without referring to the dimension of religion and as Professor Junker-Kenny said, the deep debate that takes place there between the deontological and utilitarian views. One must go back to the question of the value of human dignity, equal worth and equal respect. If one accepts that value, which can never be established scientifically, then utilitarian considerations, for example, in regard to embryo research, are given an answer. If one rejects that value, then utilitarian considerations come to the fore. That is where the debate should be, unencumbered by expressed doctrinal debate. Of course, such a debate has its legitimacy but where people are voting in a democratic society one must address the human rights issues in circular terms. This debate has yet to take place. We need to move beyond the slogans.

Professor Gabriel Kiely

I will return to that with which I started, namely, the whole question of equality which is part of what we were asked to speak about. I would like to see more debate on the principle and value of equality and to ensure that differential standards rather than a universal standard are applied in terms of equality, which I believe the charter does.

Chairman

I thank all of our guests for their contributions. They have, at various points, raised the need for more debate on some of the issues in which we are getting involved. The sub-committee is working hard to do this. I appreciate the delegation attending today's meeting. Their contributions will be helpful to us in preparing our report which will be completed by end-November.

Sitting suspended at 15.35 p.m. and resumed at 15.40 p.m.

Chairman

I welcome the speakers and thank them for attending at short notice. Their presence is much appreciated by the sub-committee. The sub-committee was set up to look at Ireland's future in Europe in the context of the Lisbon referendum result. We have four terms of reference, each of which we have turned into a work module. At present we are considering what Ireland's policy should be in particular areas, in response to the current direction of the European Union. We have broken that down under different headings. This afternoon we are discussing social policy. Members have nominated speakers to come before the sub-committee and you were nominated by many of my colleagues. Each speaker will be allowed about five minutes to put their points across. Then my colleagues have ten minutes each to put questions. All the proceedings will be published in the Official Report. I am conscious that Mr. Fieldsend has to leave at 4.15 p.m. and I propose to invite him to speak first and to deal with any questions before moving to his colleagues.

Mr. David Fieldsend

Thank you, Chairman. For the past seven years I have been the representative in Brussels of CARE, Christian Action Research and Education. My contention is that the time has come to review the protocol that Ireland had inserted in the Maastricht treaty 16 years ago to see if it is still fit for purpose and effective for the 21st century. My reasons are twofold. The protocol as currently worded refers only to the wording of the European treaties and states that nothing in those treaties shall have effect on the application in Ireland of Article 40.3.3° of the Constitution, which relates to the rights of the unborn.

Our experience over recent years is that things have been happening in the European institutions, particularly the activities of the European Court of Justice, which seem to be getting around provisions of the treaties. In the area of health care, Article 152 of the treaties sensibly prevents binding obligations under Community law regarding health systems, but the judgment of the court against the British Government states that this does not exclude the possibility that a member state may be required under other treaty provisions to bind what it does with its health service. If you cannot get it under health law, put it under another law, such as Article 49 or Article 95 on the Single Market.

On family law, there was a ruling in 2006 relating to an employment law directive. It specifically stated on the face of the directive, "This directive is without prejudice to national laws on marital status and the benefits dependent thereon." However, the court went on to rule that Germany, which was the subject of this case, would have to change its national law and recognise partners to a gay relationship as being exactly equal to married partners for the purpose of occupational pensions. In the comments attached to their judgment, the judges said that civil status and the benefits flowing therefrom are matters which fall within the competence of member states. However, in exercise of that competence the member states must comply with European Community law, particularly the provisions relating to the principle of non-discrimination.

These are two examples where the wording on the face of the treaty was got around and the original intention to keep these decisions for national jurisdiction was overruled. We need to look at the coverage of the protocol and take it beyond the treaty to decisions which are made under the treaty and decisions made by the European Court of Justice.

My second point is that the protocol covers at present only one sub-paragraph of the Constitution dealing with abortion. There are other areas of the distinctiveness of Ireland's way of life and the view of society in Ireland's Constitution which are coming under criticism and attack — not just abortion. Therefore, we need to think about widening the area to which this protocol applies. Two areas of current concern come under the headings of family autonomy; the particular status of family based on heterosexual marriage as the fundamental group unit of society, as an institution which precedes or came before the state and to which the state is to be subservient and to assist, not to be the master; the special status given to marriage because it is the best environment for the raising of children; and the special status of parents as the prime educators of their children, with the right to choose the sort of religious and moral education which their children have.

All of those, and the rights of freedom of speech and conscience for religious people and organisations, are being threatened by non-discrimination legislation which is making an absolute and overriding principle of non-discrimination, cancelling out all other rights and obligations. Ireland was recently taken to task by the European Commission for not, in its view, going far enough on the non-discrimination issue because of exemptions that Ireland gave for religious organisations in employment law, church schools and so on. Although that case has been dropped, the Commission is proceeding against nine other member states, including Germany, on the same issue. It is by no means a matter that is dead. In July this year the Commission published a further directive which is now being considered, which would take these considerations even further and would affect the provision of goods and services by all sorts of providers, including churches and religious organisations, where they make social services, accommodation services and so on, available to other people.

My case is that we should widen this out. Let us cover decisions of the European courts and laws made under the treaties rather than just the wording of the treaties themselves. I would like to see the whole of Articles 40 to 44 of the Constitution entrenched there, not just Article 40.3.3°. Other European countries do it. The German constitutional court strikes down European laws quite frequently because it says they are against the constitution and stops them from applying in Germany. The Irish constitutional court should have the power to do the same thing and a protocol along these lines could do that.

Senator Rónán Mullen

I welcome all three speakers and I thank Mr. Fieldsend for his comments. He seems to be saying that where the EU does not have competence under one article, it may well find it under another. Are you saying that this becomes a stimulus to the Commission as the instigator of legislation to take action in various areas, notwithstanding the previous understanding that it did not have the competence to act?

Mr. David Fieldsend

That is exactly what is happening. We call it "competence creep". When the Commission wants to achieve something, or pressure is being put on the European Parliament, where on the face of it in the treaty it is a subject area reserved for national competence, a search is made to see if it can be achieved another way. I gave the example in my talk yesterday of the advanced therapies, a regulation controlling medical products, their distribution and their use as treatments which, against the representation of myself and a great number of Members of the European Parliament, and the advice of the European Parliament's legal services, was put under the provisions for the Single Market under Article 95, not under provisions for health care.

Senator Rónán Mullen

Let me ask Mr. Fieldsend the awkward question as to why he as an Englishman is worried about the Irish Constitution.

Mr. David Fieldsend

My role is to follow affairs in Europe in general. I am clearly quite jealous of the fact that you have a written Constitution and have courts which can stand up for it, which we are now losing in the UK because it has only been a matter of tradition and custom, not written into a constitution. I have said we are a Christian organisation. We are not a Catholic organisation. I am a member of the Church of England, but we have supporters right across the denominational spectrum. We believe it is important that religious believers in general, not just one denomination, should be able to express their moral and religious convictions and to follow their conscience, while not being at risk of being taken to court for saying and doing what their religion teaches.

Senator Rónán Mullen

Mr. Fieldsend spoke yesterday about the language of human rights being perverted to become oppressive of rights and opinions. Could he say how he sees that happening? Does he not take consolation from the fact that the status of churches — although people other than members of churches can have a conscience as well — is referred to in the Lisbon treaty and is in some way protected?

Mr. David Fieldsend

The Senator has asked about the perversion of human rights. The original concept of human rights, of which the pinnacle was the 1948 Universal Declaration of Human Rights, was protecting the individual and the family from the overweening power of the state, protecting political and family rights. New ideas of human rights have been about promoting the rights and opinions of particular groups in society as against those of other groups, bringing into play the full power of the state to do that. When an accusation is brought against, for instance, a pastor that in a sermon he said things about homosexuality that should not be said because this is against equal opportunity, regardless of whether he happens to find that in the Bible, then he can be taken to court, be liable for punishment and have to pay all his costs. Even if he is found innocent in the end, he will have made an outlay of money and suffered a besmirchment on his character through having been taken to court for human rights abuses and so on.

I very much welcome the declaration in the Treaty of Amsterdam which will be incorporated if and when the Lisbon treaty is ratified on the status of churches, but that in itself does not give us the protection we need. The non-discrimination directive is without prejudice to the status of churches in national law, but there is a very strong stream of thought that churches and religion are only about what goes on within four walls of a church and what one does in private. It seems to be held that the state has a right to interfere once religious beliefs and views are expressed in public or when one is going about everyday life. Protection of the status of churches does not seem to cover that area. We need a further protection beyond that.

Deputy Joe Costello

I thank Mr. Fieldsend for coming to speak to the committee and enlightening us on these issues. He seeks to resolve the issue of "competence creep" by reviewing the Maastricht protocol, tightening it in one way and broadening it in the other. If there is such a thing as "competence creep" in the European institutions, it does not apply only to sensitive social issues; it must apply to other issues. Mr. Fieldsend says he intends to look for a solution in this area. Does that mean that there would be a rake of protocols to curtail this nasty "competence creep"? Would it not be better to look at it in terms of how we conduct our business? The Lisbon treaty provides for far greater subsidiarity at the level of national parliaments. There could be inputs at different stages on how legislation is formed and transposed into law, rather than looking at a protocol which deals with a particular issue.

Mr. Fieldsend speaks of extending the Maastricht protocol to other areas in terms of non-discriminatory issues and so on. Ireland has transposed into law very strong anti-discrimination measures which would be seen as the model for the European Union. What he is talking about is an exemption. We have exemptions in a number of areas. He will find that faiths other than the Catholic faith might find difficulty with that. He gave the examples of heterosexual marriage and civil union. Our Government is legislating at present for civil union, which has nothing to do with the European Union. It is difficult to see how one will stop what Mr. Fieldsend sees as "competence creep" by proposing an amendment. Even if one does, how does he propose to do it? Has he a form of wording? He refers to Articles 40 to 44 of the Constitution. Is he talking about renegotiating the Lisbon treaty in that context, or about appending a new protocol to some future treaty? What is the mechanism?

Mr. David Fieldsend

I will try to cover all those points. The Lisbon treaty does introduce new areas of national parliamentary scrutiny. There is the opportunity to have all European legislation referred to national parliaments before it starts the approval process in Brussels. This would allow national parliaments to flag their concerns about any failure to respect subsidiarity arrangements. While this is positive, it does not go far enough. Ultimately, the Commission is only obliged to have a rethink and is not bound to accept the view of national parliaments. It can carry on with such legislation if it considers this to be appropriate.

As for extension of the protocol to other issues, I have argued why this should be the case. I do not believe this is merely an issue for the Catholic church. My point pertains to the Constitution of Ireland, which, as far as I am aware, is the Constitution for the entire State and all of society, and to protecting its contents. Ireland already has anti-discrimination and civil union legislation. That is national legislation, to which Ireland is putting its own interpretations at present. I fear that in future, Europe will not keep out of it but that cases will arise in which European interpretations will be added, which will not necessarily be those that were desired when the legislation was first enacted.

The aforementioned Maruko case in Germany constitutes one such example and more examples are forthcoming from the European Court of Justice. Jurisdictions with legislation on gay partnership or civil unions are having decisions made to the effect that situations in which differences of treatment occur between marriage and civil union are being ruled to be contrary to the principle of non-discrimination and, consequently, must be taken away. Effectively, it becomes another form of marriage by the back door.

Deputy Costello asked how to do it. I propose that a protocol should be negotiated and that the Lisbon treaty will only be ratified if such a protocol is also ratified. This has happened in the past. At present, Ireland has the whip hand as everyone in Brussels is desperate to get the Lisbon treaty ratified. They are waiting for Ireland to tell them what they must give it to get the treaty ratified. This is the talk in Brussels.

I believe that if Ireland intends to propose a new protocol, now is the time to do so. It should state it seeks such a protocol in order that Ireland's Constitution and courts can be given the same strength and background as that enjoyed by the German constitutional court. Three years ago, it threw out the European arrest warrants that had been duly approved under the European procedures as European legislation. However, the German court stated it would not apply in Germany because it conflicted with its constitution.

Deputy Timmy Dooley

I am watching the clock and do not wish to detain Mr. Fieldsend any further. I thank him for his insightful and thought-provoking presentation. I wish to concentrate on the point he made regarding whether the protocol to the Maastricht treaty was fit for purpose. I will ask two questions. First, while he may have mentioned this before I joined the meeting, does he broadly support the Lisbon treaty? Second, on the issue of the protocol being fit for purpose, have there been challenges to the protocol that have negated its present contents? If not, should we not accept it is fit for purpose until such time that an eventuality arises that calls it into question or undermines what has been negotiated in some manner?

Mr. Fieldsend put forward two cases in which he suggested that competence creep would arise, the first pertaining to the United Kingdom and the second in respect of Germany. In either case, was a corresponding protection included through a protocol to protect such eventualities? Mr. Fieldsend is making quite a jump to state that because creep occurred in respect of these two areas, it is likely that one could have creep in respect of abortion in Ireland through some other circuitous route. Such an eventuality certainly was put forward during the Lisbon debate in Ireland. However, my view is there is a recognition within the European Court of Justice, to which a previous speaker referred earlier, that a political dimension also exists. The judges must take cognisance of the existence of a protocol that seeks to state this is a no-go area from Ireland's perspective. It would, therefore, act as a blocking mechanism in the context of seeking a circuitous route towards finding the capacity to make a positive judgment in respect of something which the other articles do not provide. Will Mr. Fieldsend reply to my very convoluted question?

Mr. David Fieldsend

To briefly recap what I said as to why the protocol is not fit for purpose, it was based on the changes that have taken place during the past 16 years. One of these was the activism of the European Court of Justice, ECJ, and what I refer to as competence creep. The other is the fact that there are now other areas of the rights and particularities protected in the Constitution which are being called into question by other jurisdictions within Europe and gradually by the European institutions. I refer, in particular, to the status of the family and areas of religious freedom of expression.

In terms of ECJ cases relating specifically to protocols, I do not have any information at my fingertips but I could retrieve it for the Deputy afterwards if he so desires. The cases I have considered involve wording used within the treaty. People feel that when a clause is included in a treaty, it will be respected and they are surprised when it is circumvented. I am not aware of any challenge to date to the particular abortion aspect contained in the protocol relating to Ireland. I am not stating that this will not happen in the future, I am just saying that it has not happened yet. However, I am aware of challenges in the area of family law and family status and I already referred to these. This is why I am of the view that it would be worth extending the scope of the protocol to cover those issues.

The Deputy inquired as to whether we should wait until a challenge has been made. I do not think that is a wise approach because it would then be a case of trying to shut the stable door after the horse has bolted. There have been attempts to make a challenge in the past in respect of peripheral areas relating to the abortion provisions. The questions of travelling elsewhere for an abortion and advertising abortions elsewhere were both covered in ECJ judgments, although the operation of the law within Ireland has, so far, not been affected.

Deputy Timmy Dooley

I thank Mr. Fieldsend for his reply. Does he accept that it is difficult to test the fit-for-purpose element unless a challenge is made? In view of the fact that there has not been a successful challenge, I would argue that the legal experts who would advise in respect of the taking of cases to the ECJ are of the view that the protocol is strong enough to defend against what Mr. Fieldsend considers to be a potential weakness. It is difficult, therefore, to look to the future and state that it is not fit for purpose because something might happen, particularly in circumstances where a challenge has not been made. The fact that it has not been tested suggests that it is fit for purpose.

Mr. David Fieldsend

We are going to have to agree to disagree on that point. However, it is certainly not capable of achieving what is necessary in the context of the constitutional provisions on the family because, at present, that is not included in it. There have been attacks on that already.

I was also asked about the Lisbon treaty. My organisation is neutral on the treaty. We have a mixed base and we neither advocate for or against. Personally, I see a great deal of good in it.

Chairman

Mr. Fieldsend referred to competence creep and attributed this to the role of the Commission. He indicated that if the Commission cannot achieve something under one article, it will seek another avenue. Is that correct?

Mr. David Fieldsend

It is not entirely the Commission. It is either the Commission or people who bring cases to the European Court of Justice. In the case of health services in the UK, an individual patient took a case to the European Court of Justice and that is what progressed matters.

Chairman

I thank Mr. Fieldsend for clarifying the position. In many instances, the decisions to which he refers were made or co-authored by democratically-elected politicians, either in the European Parliament or at the Council of Ministers. Would it not be fairer to question these individuals as opposed to the institutions of the Union?

Mr. David Fieldsend

My answer to that would be that Members of the European Parliament are elected under the terms of the European Parliament within the competencies the treaties have given to the Parliament and institutions. If they go beyond those terms there is a democratic deficit because they have only been elected for those specific areas of competence.

Chairman

How can one say people who are elected to an institution and are working to expand their powers or represent the interests for which they are elected, are guilty of a democratic deficit?

Mr. David Fieldsend

Could I make a parallel case?

Chairman

Of course.

Mr. David Fieldsend

If an elected county councillor or group of councillors decided they wanted to handle defence policy and make decisions about the army, I do not think most people would feel that was a proper exercise of the democratic powers and the remit they have been given. There is a parallel here.

Chairman

My second question is in relation to your idea for the expansion of the protocol. Do you have a draft that the sub-committee could look at?

Mr. David Fieldsend

I have a draft version in my head but I am not a constitutional lawyer. It would need tweaking. If I can refer to the current protocol, I will give you the nearest equivalent. Instead of saying "Nothing in the treaties shall affect the application in Ireland..." it should say, "Nothing in the treaties, legislation enacted thereunder or decisions of the European Court of Justice...". It should include those three possibilities. Instead of referring to "...the application in Ireland of Article 40.3.3°..." it should refer to "...Articles 40 to 44, inclusive, of the Constitution". That would be my proposal, but one would need constitutional lawyers to check if that would work precisely.

Chairman

Have you had a constitutional view on that? Have you had lawyers check if your amendment would be constitutional?

Mr. David Fieldsend

I have not had specific Irish constitutional lawyers check that. I am only here in Ireland for this week.

Chairman

I appreciate that. I mean constitutional lawyers of any bent. European constitutional lawyers could give a view as to whether the amendment would be constitutional. Have you done that?

Mr. David Fieldsend

I have not done that yet. We do not have a written constitution in the United Kingdom. It is very different.

Chairman

I merely ask the question because we are looking to the future, as you have been good enough to acknowledge in the work you have done. Trying to understand what the options are is part of our work.

Mr. David Fieldsend

I am very happy to do that and get back to the committee.

Chairman

I am conscious of the time. Thank you, Mr. Fieldsend, for your contribution. We will use the content of your submission to inform the work we are doing. I now invite Mr. David Manley to make his submission.

Mr. David Manley

I represent Family and Life.

Chairman

Mr. Manley, I am sorry to interrupt you. I neglected to make clear to you the procedure regarding parliamentary privilege. I am sure it will not apply but I must read it. Members of the committee have absolute privilege but the same does not apply to yourself. I apologise for interrupting you.

Mr. David Manley

Thank you, Chairman. We welcome this invitation to contribute to the inquiry about Ireland's future in the European Union in the aftermath of the rejection of the Lisbon treaty. We appreciate the genuine desire of this sub-committee to understand and identify the various strands of public opinion that contributed to the treaty's rejection.

As our name suggests, Family and Life is mainly interested in the protection of unborn life, indeed protection of life from conception to natural death, and also in the constitutional position of the family based on the marriage of a man and a woman. My comments will be confined to these areas of social policy. I would like to make it clear that our position on unborn life is that it is a human rights issue. Our position is based on the science of embryology. We are not exclusively a Catholic organisation although most of our members are Catholics. We feel the obligation of the State is to give preferential care and apply positive discrimination to the natural family as part of its work for the common good.

Family life did not enjoy a corporate position in the referendum last June and was not a feature of any organised campaign, either to pass or reject the treaty. However, I came into contact with several of our supporters who had serious misgivings about certain tendencies active within the institutions of the European Union. The perceived failure of Irish Government delegations to oppose these tendencies engendered a serious mistrust of the whole European project and played a part in the treaty's rejection.

I will comment on the actions and tendencies of institutions within the European Union and the role members of the Oireachtas have played and should play in future in representing Ireland in the EU. I am not anti-European and do not want Ireland to pull out of the European Union. We have benefited hugely from membership and, given that yesterday marked 90 years since the end of the most terrible and destructive war in history, I recognise the European Union's role in removing the hostilities and traditional enmities which led to that great bloodletting.

Apart from the problems with the text of the treaty it was obvious to many people that it provided for strengthening of the executive powers of the Commission, that the European Parliament was being developed as a true legislative body and the European Court of Justice was moving towards being a supreme court with jurisdiction over national law. These developments raised legitimate fears among many people, especially in the areas in which we are interested.

I will touch on three areas, namely the campaign to make abortion a woman's right, same-gender marriage and the destructive research on human embryos. These three agendas seem to be favoured within the institutions of the European Union, with the groups that work in favour of them receiving benefits while those who oppose them seem to be ignored or undermined. The redefinition of marriage in the name of equality seems to come from the office of the European Commissioner for Employment, Social Affairs and Equal Opportunities, whose documents make no secret of his support for same-gender marriage and the absolute equality of all persons in registered lifetime partnerships, be they homosexual, heterosexual or any other gender identity. This does not just apply to employment but marriage, family and adoption, all of which I thought were reserved to the national law of each member state.

I will give members an example of where a group received preferential treatment. The International Lesbian and Gay Association — an American group — was invited to form a European branch and it became ILGA Europe. It was generously funded with EU money, to the tune of €500,000 in 2007, and was invited to take part in the drafting of comprehensive legislation across the European Union to establish equality in every area of human activity. What pro-family group received such funding recognition or access into the workings of the EU?

In August 2008, a group called the Fundamental Rights Agency, which is a formal EU body, issued a report proposing that all member states should be obliged to grant same sex married rights if they had not already done so by partnership legislation. This measure, it said, is based on the EU's "fundamental principle of equal treatment of citizens". The sub-committee has heard of the judgment of the European Court of Justice in the Maruko case. Where are all these other rights going: the right to freedom of belief; of speech; to educate one's children? Where is the special, positive discrimination of the family and its vital link to the common good?

Reproductive rights is another area which is frequently raised in international conferences, both in the EU and in the United Nations. Again, there seems to be a certain amount of favouritism. For example, the Network of European Women's Rights, the Youth Forum and the European Women's Forum receive special treatment and funding. Pro-life groups receive scant notice and, to my knowledge, no funding, and experience, sometimes, a very negative reception. In May 2003, a leaked memo from the European Commissioner Poul Nielsen revealed extreme hostility towards pro-life NGOs and MEPs. He noted with horror "several amendments sought to ban abortion and sterilisation from being included in the regulation on reproductive health. This time, the amendments to ban abortion were rejected but 181 MEPs voted to accept them".

Chairman

I am sorry to interrupt you, Mr. Manley, you have about one minute left. I only make the point because I am eager that Father Jacob can speak and that everyone can participate in the discussion.

Mr. David Manley

I would like to make some recommendations to the members of the Government and the Oireachtas which refer to the second part of my address. First, the Government and its civil servants should actively promote the values of the Constitution at home and at international meetings, especially in the European Union. We should be proud of our Constitution. We should not hide it away or be silent about it. Second, civil servants, when acting as delegates for the country at international venues, should be instructed to disengage themselves from actions with run counter to the official position of the Government or the values of our Constitution. Third, in the European Parliament and the Commission, the Government should include pro-life and pro-family civic groups to participate in the drafting of EU legislation and directives. Fourth, the Government should strengthen the Joint Committee on European Scrutiny, effectively to monitor the drafting of EU laws and directives and report on the actions of Ministers and civil servants at international fora. Finally, the Government should seek an opt-out from the Charter of Fundamental Rights, as was offered in the negotiations last year or else find a new protocol to immunise Articles 40 to 44 of our Constitution from the European Court of Justice.

Chairman

Thank you, Mr. Manley, for your contribution. Mr. Jacob, I inadvertently referred to you as Father Jacob a moment ago, due to a problem with the monitor. It has now been corrected and I apologise to you for that. It is Mr. Jacob.

Senator Rónán Mullen

Our apologies to Mr. Jacob's wife.

Chairman

It is the first such mistake I have made at this committee. I call Mr. Jacob.

Mr. Francois Jacob

As my wife does not understand English, I hope she will not be afraid of the term "Father". I am not a priest; rather, I am a 27 year old French citizen and am present to speak on behalf of the European branch of the World Youth Alliance, WYA.

The WYA, a global coalition of young people promoting the dignity of the human person, considers it a great honour to be invited to give the perspective of young people on Ireland's future in the European Union. While we are not experts on Irish law, we have some qualifications to discuss the aspirations of the young people we represent. The WYA has 20,000 members in more than 100 countries and approximately 1 million members through its member organisations. It is a non-religious organisation. A number of our members and organisations are from or based in Ireland.

Neither the WYA nor its member organisations campaigned for or against the Lisbon treaty. Through its membership, the WYA observes that the Irish people are not alone in Europe in supporting the family and a culture that respects human dignity and life. Human dignity is the foundation of human rights and the starting point of any discussion on development. I apologise for conveying these thoughts on human rights and dignity, but it is in this way that the young generation approaches the question with a brand new vision.

It is important to ask the question of what human dignity has to do with Ireland's future in the European Union. To understand the connection, we must turn to the meaning of dignity. Dignity is our intrinsic worth which does not change with time or situation. All humans have it. Our organisation's charter states: "We believe this dignity is independent of any individual condition and that no human community can grant or rescind that dignity".

The concept that all humans have dignity has policy and cultural implications. It requires that we place the human at the centre of all debates on development policy and that humans are never used as a means to an end. When dignity is cherished in custom and protected by law, humans can flourish in solidarity with one another. Conversely, when the dignity of the human is attacked or unrecognised or when humans are treated as objects, the most extreme human rights violations can occur.

The WYA wishes to stress that humans need to be the focal point of all policies. The European Union is not exempt from this requirement. We have had an office in Brussels for eight years. In the context of this discussion, we ask whether the human is the focus of the Union and the Lisbon treaty. Has the great European integration project fostered and protected the dignity of the human and recognised that humans are an end in themselves? If not, it is important that we re-examine and refocus our efforts.

The young people of our organisation who represent every continent wish to share with the sub-committee our conviction that the intrinsic dignity of every human possessed from conception to natural death is the foundation of everyone's right to life. This right is the basis of a free and just society. The European Union and the rest of society have an obligation to protect the dignity of the human and, therefore, the right to life.

In Article 2, the Lisbon treaty affirms that the European Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. The treaty also recognises the rights listed in the Charter of Fundamental Rights of the European Union and the European Convention for the Protect of Human Rights and Fundamental Freedoms, both of which confirm that human dignity is the foundation of human rights. As the European Union continues the project of integration, we hope it will reflect our conviction that these rights instruments must be interpreted as guaranteeing the right to life from conception to natural death. Member states must be assured that the human person will be respected in this way.

There has been much discussion about Article 40 of the Constitution. The section on fundamental rights states, "All citizens shall, as human persons, be held equal before the law". This sentence alone indicates a great heritage of respect for the human person and human dignity. Every person shall be held as equal, not because the law so orders but because every person is a human being. The Irish people indicated in 1983 that human beings, at the earliest stages of development, were also worthy of equality under the law. Armed with this strong human rights tradition that places the human person at the centre of policy and law, Ireland can enter into a dialogue within the European Union on the fundamental principle that all human beings have intrinsic dignity. With pride in its own traditions, Ireland can encourage the Union to make the human being the focal point of law and policy.

As we celebrate the 60th anniversary of the Universal Declaration of Human Rights, let us recall that the "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world". Without this recognition, the great project of the European Union will not succeed. We look forward to Ireland's contribution to promoting a common understanding of human rights that reaffirms the dignity and worth of the human person.

I apologise for any linguistic errors I have made and my bad French accent.

Chairman

No apology is needed.

Senator Rónán Mullen

I thank both speakers for their presentations. I am glad everything has been clarified with regard to their marital status which was of concern to us as we examined social and ethical issues.

Mr. Manley brought up a number of instances where he considered traditionalists, pro-life supporters, pro-family organisations and those who argued for special privileges for the family based on marriage had been treated as second-class citizens. He argued that they had been denied equal access to decision making within European Community structures and denied the same level of funding as other organisations. The Minister for Foreign Affairs, Deputy Martin, yesterday pointed to several instances where bodies such as Trócaire had received funding. In other words, organisations which might have a more traditional understanding of issues are, nonetheless, given funding for projects. Is there a disparity in the funding made available to organisations? Mr. Manley gave specific examples but are they exceptions that prove the rule? It appears one particular Commissioner, Poul Nielsen, had a prejudiced view but can it be fairly said this is informing the policies of the European Commission and other institutions on an ongoing basis? If it can be said and is true, how can we deal with the issue in Ireland? This has nothing to do with whether we have protocols or opt-outs from application of EU law in Ireland. It possibly reflects the fact that there is a majority of countries and delegates with a more secular or liberal view of policies. If what Mr. Manley is saying is true, is there anything that can be done about it in our negotiations on the Lisbon treaty?

Mr. David Manley

I have made extensive inquiries and not come across any family or pro-life group which has received funding and recognition in EU circles. However, certain other groups on the opposite side appear to be well received in every way. Lest anyone is mistaken, what I am looking for is a level playing field which is what any democratic institution should not alone permit but also encourage. If one is to provide funding for groups, one should ensure one will give it to all groups with a level of reasonable support, be they international or national groups. It appears to me and many others that there is a lack of fairness or bias, a partisan attitude, within EU circles. What can we do about this? We can do quite a bit through our representatives who must monitor what is going on and who, when they see one group with an almost exclusive input into reports, draft directives or laws, should make a fuss about it. Ireland's representatives have been silent when they have come across controversial matters, which is not helpful or encouraging. There have been times when our delegations did stand up. One such occasion was in November 2007 when an African programme, the Maputo programme, was put forward for funding from the European Union development fund. The programme included many measures that were contrary not alone to Ireland's Constitution but European Union protocols. It permitted and encouraged the setting up of abortion centres in Africa. The Irish delegation opposed the proposal and the Commission eventually agreed that aid would be given within the context of European Union policies. If Irish delegates make a fuss, they can produce results. This will feed back to the people at home who are proud of the Constitution. This stance was taken prior to the Universal Declaration of Human Rights in terms of personal rights, rights not given by governments but recognised by them. This will provide reassurance that we are safe in the European Union. I hope I have answered the questions asked.

Senator Rónán Mullen

Yes. I thank Mr. Manley for his response.

My next question is directed at Mr. Jacob. Mr. Manley has described a situation where there is a disparity in access to power at European Union institution level. It is clear, having read and listened to Mr. Jacob's speech, that a core issue for him is the pro-life question in terms of respect for life at all stages. Does the European Youth Alliance receive funding from the European Union? If not, has it applied for funding? If it has, how does this compare with organisations with a different agenda?

Mr. Francois Jacob

I will tell two stories which I hope will answer the Senator's questions. The European Youth Alliance has not to date received any funding from the European Union. The European Youth Alliance was born following the United Nations Cairo conference in 1999, the follow-up to the 1994 conference on population and development. This story sets out our relationship with the institutions.

A group of young people was brought together by the United Nations, which funded their travel. By chance, our founder, who is from Canada, also attended. As she also is a United States citizen, it was easy for her. Ultimately, this group produced a report addressing the world's most important needs in respect of access to food, education and basic developmental needs. Three requests were made, namely, that abortion should be a human right, the deletion of parental rights and the creation of what were called sexual rights. Only a few people, who were not brought to the conference by the United Nations, thought these three issues were not correct or at least did not address the world's core needs today.

As a result, the World Youth Alliance was created for a very small group of young people. Our founder simply made a declaration on the following day, which resulted in a split in the general assembly. The process was problematic. One point is that this debate does take place and it is the same within the European Union today. We are present here and in a way, our organisation has much support around Europe. However, there is a lack of debate about this issue.

The second story is much more recent. Last week, the European Commission supported a programme called the European Youth Week at which there was a political debate among almost 200 young people from all over Europe. While we again were not invited, we attended anyway.

Chairman

One minute remains in Senator Mullen's section.

Mr. Francois Jacob

One young Polish journalist, of whom there were 24, asked a question about family and observed he did not know the reason there were so many debates on family because it was a national competence. He talked about marriage and the other aforementioned points. The whole room reacted to his contribution and two speakers mocked him. Basically, his was the only intervention that was directly attacked and we were the only ones to speak to him subsequently. He was one person among 200 young people, which is the reason I can attest that there is a lack of balance in this debate. Ireland has a great chance to realise that this debate is necessary because the issue can arise at any time.

I come from France, which is not a particularly religious country or one that considers such issues to be as important as does Ireland. However, I can state there are young people throughout Europe and globally who share this approach, as represented by our charter. In particular, since 2004, when Poland and other countries from the post-Soviet bloc entered the Union, such debates on values and on values pertaining to the culture of life or human dignity, now happen, albeit too rarely. It still is a taboo subject within the small European world in Brussels.

Deputy Timmy Dooley

I welcome Mr. Manley and Mr. Jacob and thank them for their thought-provoking presentations, which certainly are helpful to the sub-committee's work. Nevertheless, I will play devil's advocate in an effort to induce the witnesses to assist members as best they can in their work. As for the points raised by Mr. Manley, he should indicate to members the membership size of the organisation he represents. While I had intended to ask that question of both witnesses, Mr. Jacob mentioned it in his presentation.

Funding was mentioned as an important issue and a number of issues were identified, which is a worthwhile activity. I will play devil's advocate by suggesting that the lesbian groups or other groups mentioned would perceive themselves to be on the periphery to an extent and may perceive themselves to be marginalised. The EU has been quite good at such funding, if one considers the provision of Structural Funds, in which context we presented ourselves as a marginalised nation on the western periphery of Europe. We sought funds to improve our infrastructure. It was not a general disbursal of funds that allowed Germany, France and others to do likewise, as it was perceived to assist those member states that were outside the structure or that were somewhat marginalised. Perhaps Mr. Manley might comment on that matter on the basis that the natural family, as he described it, would be considered to have been the norm across Europe and that this might explain how, in the context of funding, the lesbian or gay groups to which he refers were marginalised to some extent.

Mr. Jacob referred to the fact that dignity is the foundation of human rights. He also stated that from conception to natural death there is a continuum of dignity. I wish to use his comments to some extent to question Mr. Manley further on some of the issues relating to same gender unions. If we accept that we are required to respect the dignity of each individual, is there not also a requirement on us to respect the choice of the individual? I refer here to unions, not marriage or the right to adopt children. With regard to the latter, we must recognise the dignity of the child and his or her right to have a natural mother and father. Will Mr. Jacob comment on that matter?

Mr. Manley referred to the notion that the Constitution is quite strong regarding the protection it affords in respect of the right to life of the unborn. He also referred to the necessity for our representatives, politicians or diplomats to try to instil this in the minds of those they meet or with whom they converse or negotiate. We should adopt an approach that is geared towards ethical subsidiarity, purely on the basis that we do not like France, Germany, England or any other country telling us how we should manage our ethical issues. We tend to react negatively when there is an inference in this regard. In his presentation, Mr. Manley indicated that we do not want the ECJ telling us how to manage our affairs in this area. However, there are two sides to this argument. We should not expect to be in a position to unduly influence outcomes in other jurisdictions. That is the end of my stint as devil's advocate.

Mr. David Manley

I thank the Deputy for his questions. He inquired about the number of our supporters. We have approximately 5,000 supporters. The number tends to rise and fall.

Deputy Timmy Dooley

We know all about that from a political perspective.

Senator Rónán Mullen

The Deputy's quota appears to be fairly healthy.

Mr. David Manley

There are sleepers who tend to come alive again after a period and give us their support.

I recognise the need for funding for various groups which claim to have suffered in the past and which, in certain parts of the world, continue to suffer. It is difficult to oppose same gender marriage and I do not want to see persecution or discrimination against people who are of a different sexual orientation. These matters appear to have a momentum of their own. Some 15 or more years ago, Senator Norris took the Government to the European Court of Justice and won his case. At that time, the various leaders of what was called the homosexual campaign said they only wanted to be decriminalised. They did not indicate a desire for marriage or anything else. That was then. The position is no longer the same and those to whom I refer are pressing for various changes. The Commissioner for equality seems to have embraced them fully.

The argument on reproductive rights is ever advancing and asking for more, such as complete legalisation. In so doing, it tramples on others' rights. For example, if there is a requirement that homosexuals and heterosexuals be educated in every school, how can the parents' rights be reconciled? It has become an acute problem in some states in the US because parents are being forced to educate their children at home. Funding for victims mothballs easily and the victim becomes the oppressor.

I agree with the dignity of individuals. However, how can the distinction be maintained between marriages and unions that are not marriages but hold the same privileges? How can positive discrimination towards families based on marriage, which is required by the Constitution and the Universal Declaration of Human Rights, be maintained? Without getting into philosophical or doctrinal discussions, it is not possible.

Ethical subsidiarity is a two-way street. If I am not to impose my morals on you; you are not to impose them on me. However, if you do not impose your morals on me, you cannot ask me for money for whatever purpose. That would be a one-way street, not ethical subsidiarity. It occurred in the case of European funding for embryonic research. Have I answered the questions?

Chairman

Does Mr. Jacob want to respond to Deputy Dooley before I call Deputy Costello?

Mr. Francois Jacob

No. We know what Mr. Manley spoke about, namely, the structural funding in the Seventh Framework Programme being used for embryonic stem cell research.

I relayed a story regarding ethical subsidiarity. While the latter is important on paper, it is not shared by young people's culture. Consider the young Polish boy's experience last week. Culture is fixed by policy, for which reason we are taking the opportunity presented by the Lisbon treaty to reaffirm the difference in competences.

Deputy Timmy Dooley

Will Mr. Jacob tease out his final point on what can be done with the treaty?

Mr. Francois Jacob

I subscribe to Mr. Fieldsend's suggestion, which has been further developed. The additional protocol on Article 40.3.3° is good, but it could be better.

This is an important debate. While we are discussing law, we are also discussing culture. It is taboo to discuss family and life issues, but it is a European emergency. For example, the family was not on the EU's agenda a few years ago. Today, it is obvious from several Commission declarations that Europe faces a great demographic challenge. It is good that the family is at the centre of social policies.

Deputy Timmy Dooley

It is not on the agenda to the extent preferred by Mr. Jacob, namely, the agenda of individual member states. To some extent we have stronger protection for the family, the unborn and those at the end of their lives than many of the countries of Europe. We have done well to maintain that protection and prevent global influences affecting us to the extent they have affected other places. It is misguided to expect that, through participation in Europe, Ireland can bring the debate to a European level when there is not even a willingness to hold the debate at national level within member states. If the World Youth Alliance, which has an impressive membership, or other organisations of a like mind cannot succeed in generating debate within member states it will certainly not do so at European level. If an organisation promoted the destruction of the family or abortion at European level we would take a different approach and work against it.

Chairman

Everybody will have an opportunity to speak but I want to let Deputy Costello in.

Senator Rónán Mullen

May I make a point of order, or perhaps, more a point of survival? Is there any chance you could turn on the underfloor heating? I trust you are not trying to close down the debate prematurely by turning down the temperature of the room.

Chairman

When the Senator made a point of order and suggested it was one of survival I prepared my notes for a response. All the Senator's colleagues are experiencing the same problems.

Senator Rónán Mullen

Solidarity.

Chairman

We will get the problem solved. I call on Deputy Costello.

Deputy Joe Costello

I thank the delegates for attending. What they said was very interesting and helpful.

The European Union has no competence in family policy but it has an interest in family matters, as Mr. Jacob said, because demographic trends affect employment and the economy in every way. As Professor Kiely said earlier, Community action is based on the principle that the family assumes an essential role and place in the cohesion and future of society. The family should be protected and specific measures should be adopted in recognition of the services it renders to society. He also indicated the areas in which the European Union promoted the family. He spoke about the observatory on national family policies, the network on child care and the network on equal opportunities established in 1994. There are policies that support the family and funding for their implementation. Until last year, every penny Ireland put into child care came from the European Union so the issue needs to be looked at in a broader context.

Human dignity, of which both delegates spoke, is at the heart of the matter. It is best expressed in the values of the Lisbon treaty, to which Mr. Jacob referred. The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. Mr. Jacob acknowledged that such rights were in the charter. Article 40 of the Irish Constitution states, in what is a fine expression, that all citizens shall be held equal before the law. I hope that Article is not one of the things Mr. Manley wants to change.

Is the European Union not strongly underpinned by human rights, respect for human dignity and equality? Mr. Manley may not find the approach to gender orientation fully acceptable but we have transposed measures relating to equality into law in the form of nine anti-discrimination rights. One of them is the right to gender orientation. If there is equality, irrespective of gender, is it not reasonable to transpose that right into legislation on civil union, although same sex marriage might require a constitutional change? What the Government is doing, in providing civil union legislation to cater for the rights of persons of a different sexual orientation, is seen in terms of rights rather than the opposite. If one does not protect the rights of all citizens, the commitment to human dignity and the protection of rights is less than it should be.

Mr. Manley said he would prefer Ireland to opt out of the Charter of Fundamental Rights. I find that statement extraordinary. The British Government is opting out of the charter, not because of social issues but because it does not wish to grant rights to working citizens. The right to collective bargaining and to take industrial action are strongly protected in the charter. These rights are put together from the totality of rights already given. The right to life is expressly stated in the charter. Am I right in saying Mr. Manley is concerned about how some of these rights might be interpreted?

Professor Junker Kenny has stated the European Court of Justice plays second fiddle to the European Convention on Human Rights and the European Court of Human Rights which the Irish and British Governments have transposed into law. That is not causing any problems. The European Court of Human Rights determines matters in this area.

Mr. Francois Jacob

It is a pity Deputy Dooley is not here. I would like to say something about the state of the family in the European Union.

In reply to Deputy Costello, I am aware that family policy is not a competency of the European Union. However, I hear Ireland's statistics for the family are good. The average birth rate in Europe is 1.5. France has the highest birth rate in the European Union, at 1.9. This is not enough to renew the European population. I do not have the figure for Ireland.

Senator Rónán Mullen

We are not doing too badly.

Deputy Joe Costello

We are doing okay.

Mr. Francois Jacob

Well done. Concerning Deputy Costello's second question on gender orientation, the World Youth Alliance has no position on marriage. We have a position on the family. According to us, there is no right to have a child. Marriage is always connected with children. Humans cannot be used as a means to an end. People want to have children, which is obvious among my generation. The European Union is struggling to reconcile our private and professional lives, an important matter, and a materialistic view is often in evidence. Among my generation, it creates a wish to have children. While this is a basic and natural human feeling, the WYA views it as a gift, not a right, irrespective of from where one comes or whether one is religious. This is the view we want to promote when we discuss children and the family. It relates to dignity. For example, children should not be used as a means. I understand the wish to have children, as I am happy to have two.

Several forms of assisted reproduction technology are being developed in Europe. The WYA has a declaration on assisted reproduction technology, including in vitro fertilisation and surrogacy, to the effect that international institutions and governments should take care because, through these technologies, the human can be instrumentalised as a means to an end. For example, more people want to have children through the use of technology. The alliance’s members agree that children cannot be used to fulfil our wants.

Deputy Joe Costello

Is the WYA opposed to IVF?

Mr. Francois Jacob

IVF uses male and female bodies as a means and can lead to the objectification of the human body. As the Deputy may be aware, a person must collect sperm. I will not go into the details. We included surrogacy in our declaration. In Romania, for example, women were purchased to carry babies. Surrogacy can lead to human trafficking, against which the European Union is fighting.

Mr. David Manley

Am I allowed to refer to Deputy Costello as such?

Deputy Joe Costello

As I have often said, I have been called worse.

Chairman

It is the correct form of address.

Mr. David Manley

I support the Constitution, Article 40 of which commences by stating everyone is equal before the law. While the nine grounds were originally conceived as part of employment law, there is much to support them. However, the Constitution reads that the State shall "have due regard to differences". Marriage is something that is different.

I will try to explain my opinion as briefly as possible. The State supports marriage under the law and through taxation and public policy because of children. If children did not originate from sexual union, the State would have no interest in what people do in their homes. Its sole interest is not the happiness or fulfilment of individual citizens; rather, it is children who are our future through the quality of their development. A man and woman, joined together in marriage, empirically seem to produce the happiest, healthiest children and future useful citizens. That should be the interest of the State. What people do in the privacy of their own houses should not be of great interest to it. That is my attitude to the proposals to recognise same gender unions, marriages or partnerships.

Chairman

Let me interrupt briefly. I have been very happy to let this conversation unfold because all or most of it is relevant to our discussion. However, I am conscious of the fact that we do not have much time left. In that context, I ask Mr. Manley to weave back to the role of the European Union and its influence in these matters. We can then allow others to make their final points. In that way, we will all benefit.

Mr. David Manley

In that case I will make a short comment on the Charter of Fundamental Rights. My main objection and that of various legal experts to the charter is the vagueness of many of the terms used therein. If terms are vague, inevitably the role of a judge in interpreting them will come into play.

With regard to the European Court of Justice and the European Court of Human Rights, as someone said recently in a political debate, "that question is a bit above my peg rate." Therefore, I will not go into it. However, it is obvious that the European Court of Justice will grow. It has teeth, unlike the European Court of Human Rights, the decisions of which are not binding. The latter works on the basis of its own moral weight or influence.

Chairman

I will allow each of my colleagues to make one final point, but before doing so, I wish to make a point to Mr. Manley who has just said the European Court of Justice has teeth and that there is potential for the European Court of Human Rights to have more in the future. The powers of the courts are conferred on them by law makers and elected politicians. Should the points made by Mr. Manley which are very informative not be addressed to the elected politicians giving these powers, as opposed to, for example, the European Court of Human Rights?

Mr. David Manley

What the Chairman says is very reasonable. The only difficulty is that the Lisbon treaty is incredibly difficult to understand. Most, if not all, Irish politicians do not understand it. One even said so, very honestly.

Chairman

With respect, what Mr Manley said played a role in the Lisbon treaty campaign but my question relates to a different issue. My point is that the institutions of which Mr. Manley is critical are using the powers democratically elected politicians have conferred on them. Elected politicians in Ireland, as Mr. Manley pointed out, have not used the powers and competences available to them. In that context, should the thrust of Mr. Manley's points be directed at the elected politicians?

Mr. David Manley

There is a lot in what the Chairman says which relates to the main burden of my submission. It is incumbent on our politicians and civil servants to tease out what is being given.

Chairman

That is what we are doing.

Mr. David Manley

It is.

Senator Rónán Mullen

I would like to make a couple of quick points in ease of my colleague, Deputy Costello and to some extent the Chairman, in regard to legal matters.

Deputy Costello cited Professor Junker-Kenny in saying that the European Court of Justice plays second fiddle to the European Court of Human Rights. An accurate understanding of this might be that the European Court of Justice in its decisions has regard to the jurisprudence of the European Court of Human Rights, so there will be a great deal of cross-referencing. Principles that are championed or developments of the law at the level of the European Court of Human Rights, which is a child of the convention and the Council of Europe but separate from the EU, will from time to time inform ECJ decision-making.

The European Court of Human Rights has been incorporated at sub-constitutional level which means if one's rights under the European Convention of Human Rights, as interpreted by the court, cannot be guaranteed in a way that is harmonious with the Irish Constitution, one is entitled to a declaration to this effect, but the Irish Constitution will remain supreme. In this sense, there is a difference in that decisions of the European Court of Justice handed down in particular areas that might surprise people, would have to be followed as they would have supremacy over the Irish Constitution and any interpretation thereof. This is relevant to the issue raised by the Chairman.

Much of what we heard today is relevant. However, much of it can be dealt with by carving out the necessary authority for the Irish Constitution and particular fundamental rights in the final analysis. In that sense, much could be done by politicians during negotiations on directives such as pointing out sensitivities in the Irish Constitution which our European partners might take into account. However, we must also deal with situations such as that outlined last week by Mr. Collins, namely, in the case of a water directive it could be two decades before it is unpacked in a way that surprises people. The question we asked was, given it has taken time to unpack the meaning of the directive is there any recourse to Ireland, in the event that what the directive now means in the light of the Commission's actions or, perhaps, an interpretation of it by the court, should conflict with our constitutional values?

We are to some degree in the domain of "it is up to elected politicians to try to deal with issues as they arise". However, we are also, to some degree, dealing with possible adventurous judgments of the European Court of Justice. In this regard, I might give to the secretariat the article by Roman Herzog, former chairman of the European Court of Justice in regard to his view of the activist nature of the European Court of Justice. This is but one man's view but it is a very eminent view given his role as former President of federal Germany and Chairman of the European Court of Justice.

As I stated earlier, some of the issues raised can be dealt with by way of constitutional referendum or, if we were to permit ratification in a particular way, by way of protocol. There will be other examples. I do not know if Mr. Manley or Mr. Jacob is familiar with the report which was contracted to FRALEX, a group similar to the EU Network of Independent Fundamental Rights Experts. The fundamental rights agency of the European Union contracted the writing of a report. I apologise I am mixing up my points. I wanted to make a point in regard to Concordat, the document produced by the fundamental rights agency which dealt with concordats between the Holy See and various member states. The document reported that the right to conscientious objection would come second to rights of access to abortion and various other things such as euthanasia and assisted suicide. As this would only apply in member states in which such practices were legal, it could not be perceived to be oppressive. Nonetheless, it might be of concern to our politicians who might not wish to see people in other member states suffer as conscientious objectors in the context of, for example, the provision of abortion services. Does Mr. Manley believe it would be acceptable for Irish representatives, in the light of our constitutional values, to get into the mix on what should be the law on such an issue? Second, how does he think they could achieve this, given that they might well be in a minority? If one assumes there is a dominant liberal view in most other member states, they might not be able to garner the necessary votes to speak up for conscientious objections.

Chairman

Mr. Manley should do his best to respond briefly to Senator Mullen because the sub-committee is due to consider another module after this.

Mr. David Manley

I am not sure I fully agree with ethical subsidiarity. When the Austrian elections some years ago produced a surge to the extreme right, there was almost holy war within the European Union. There was no question of ethical subsidiarity in that case, rightly so. If we are standing up for the rights of conscience, surely that is a noble endeavour and one is not obliged to ask for anyone's permission to so do. It should be supported fully by the values underlying the Constitution and the European Union.

Chairman

I thank Mr. Manley for his contribution.

Deputy Joe Costello

I wish to make two brief points, the first of which is that the European Court of Justice can only make rulings on the basis of the competences given to it. As we have transferred such competences, it determines those issues. The accountability issue is huge. As parliamentarians, members have a role in holding accountable the institutions of the European Union in the manner in which they conduct their business, from the earliest stage of drafting legislation to the later stage of transposition. Power rests with Members of Parliament and this is the arena in which they should conduct their business.

I seek clarification from Mr. Manley who proposed an opt-out in respect of the charter. Does he suggest we should discard the charter in its entirety? Second, on his other proposal, am I correct in stating he wishes to rejig Articles 40 to 44 which would be inserted in a protocol to be negotiated in moving forward with the Lisbon treaty?

Mr. David Manley

On the Charter of Fundamental Rights, I do not know whether it is possible to opt out of those bits one does not like. I doubt it and believe one would be obliged to opt out of the lot. However, that is a matter for legal people. On Articles 40 to 44 which deal with individual rights, family life and education, such personal rights are interlinked, form part a world view and definitely differ from the Charter of Fundamental Rights. I would like to see that part of the Constitution rendered immune from being overruled in some fashion.

Chairman

I thank Mr. Manley and Mr. Jacob for their contributions, which will be of great assistance to us in our work. We appreciate their giving of their time to come before the sub-committee. We will suspend until 5.40 p.m. and I ask members to ensure that someone from each of the groups is present here for the latter stages of our day's work.

Sitting suspended at 5.25 p.m. and resumed at 5.45 p.m.

Chairman

I welcome our guests, Mr. Paul Kelly and Mr. Malcolm Thompson. Mr. John O'Leary is still en route.

The sub-committee was set up to examine Ireland's future in the European Union in the context of the Lisbon treaty referendum result. We have four terms of reference which we have turned into four work modules. We are examining Ireland's future approach to various policy areas and focusing on the agriculture and food industries. During our discussion we would like to hear about our guests' assessment of how our ability to deliver on the national interest in these areas has been affected, if at all, by the result of the Lisbon treaty referendum.

Each group is represented by one speaker who will be given time to pose questions. The contribution made by our guests will inform our final report. Each guest will be given approximately five minutes to make an opening statement. I ask our guests to note that members of the sub-committee have absolute privilege. However, the same privilege does not apply to witnesses appearing before the sub-committee.

Mr. Paul Kelly

I thank the Chairman for the opportunity to appear before the sub-committee and commend members on the extensive exercise they are undertaking.

Food and Drink Industry Ireland, FDII, represents the interests of 150 food and drink companies and is a business sector within IBEC. The European Union has been central to the development and expansion of the food and drink industry in Ireland. FDII supported the ratification of the Lisbon treaty and believes the fact that we find ourselves in limbo has reduced our influence in the European Union and has not done the sector any favours.

I will briefly outline the economic importance of the sector, its unique structure and the interface with the European Union. That will put most of the issues surrounding the Lisbon treaty for the sector in context.

The manufacture of food and drink products is Ireland's most important indigenous industry, with an output approaching €20 billion. The presentation given to members contains a number of important statistics, among which is the notable fact that there are 50,000 direct and 60,000 indirect employees in the sector. Furthermore, the industry caters for 90% of the output of Ireland's 120,000 farmers. The industry has an enormous impact in its linkages with other parts of the overall economy. The sector purchased almost half of all goods and services purchased by Irish manufacturing industries in 2007. It accounts for 20% of gross value added in Irish manufacturing. It is very much an export-oriented industry, with €8.6 billion worth of exports recorded in 2007. It also accounts for two thirds of exports by all indigenous manufacturing industries.

These export statistics are particularly relevant because 73% of exports from the food and drink sector go to the European Union, with 42% going to the United Kingdom and 31% to the rest of the Union. The balance of food and drink exports goes to third countries. The relative importance of the food and drink sector to Ireland is greater than almost all other European Union countries, with the highest gross value added per employee in the European Union and one of the highest turnovers per capita. These are some of the key statistics which put the overall economic importance of the sector in context, as well as indicating the importance of the European Union to the Irish food and drink industry.

We are a unique industry, greatly influenced by what happens at EU level. This is more so in our case than that of any other sector. The full extent of the supply chain, raw materials, production and processing, logistics, sales and marketing, professional services and headquarters are located in Ireland. This means that the regulatory environment affects this sector more than any other. That would include framework policies such as the Common Agricultural Policy, energy security, climate change, sustainable consumption and waste, through to specific regulation and directives on animal health, food safety and consumer information.

All aspects of the supply chain are also affected by a complex, difficult and fast-changing business environment, commodity price volatility, euro appreciation, energy costs and retail buying power. All those in turn are affected by European policies. Probably most importantly, we are an exporter to the rest of the EU. Our per capita food exports are among the highest. The only country in the European Union which exceeds us is the Netherlands, and that is more to do with its trading status and the centrality of Rotterdam as a port to central Europe.

How does the EU affect the food and drink sector in Ireland? It affects us throughout the supply chain. At raw materials level we have major determinants such as the Common Agricultural Policy, but it is probably worth bearing in mind that newer policy areas such as climate change, which is being discussed today at another committee in this building, will also have a major effect on the supply base. At production level we are no different from other manufacturing sectors, except that we are very highly regulated. Issues such as traceability, food safety and food hygiene are directly relevant to us and almost all relevant legislation in that area originates in the European Union. Similarly, as a large manufacturing sector in its own right, the industry faces a whole range of other European regulations in areas such the environment, energy, health and safety.

From a trade perspective the European Union is by far the largest single market in the world, with 500 million consumers, and there is a growing degree of harmonisation on regulatory issues. This creates efficiencies for an export focused sector. As the world's largest trading bloc, the EU has the ability to facilitate third country market access and the offensive trading interests of Irish food exporters. From a consumer's perspective, the EU has a very large and important role in terms of regulating aspects of consumer information. This would include matters such as on-pack nutrition panels. More recently, the European Commission has adopted a co-regulatory approach with industry to develop more comprehensive labelling initiatives and agree commitments on marketing, advertising and in the public health arena in terms of diet and physical activity.

A number of specific points are worth mentioning in terms of the Lisbon treaty's impact on the food and drink sector and how we interact with the EU. Lisbon proposed greater parliamentary scrutiny over implementation of legislation and additional areas of co-decision that affect our sector, specifically agriculture, climate change, energy, trade policy and intellectual property. Lisbon also proposes additional competences for the European Union that would affect the food and drink sector, particularly in the areas of energy policy and climate change.

Ireland is a small exporting nation within the European Union with a food and drink sector which accounts for one third of net foreign earnings — that is from a report from the Department of Agriculture, Fisheries and Food — and two thirds of exports of indigenous companies from all regions of the country. The EU has allowed the sector to grow in terms of absolute exports, market diversification and given us the efficiencies of a large single market. The sector has reduced its historical dependence on the UK market and now has a structure that gives us the highest gross value added per employee in the European Union. We are, however, uniquely exposed as a sector to the policies and regulatory impact of the EU from farm to fork. To date we have been very effective in making our case to the Commission, to Irish MEPs and within our European trade associations.

The Lisbon proposals extending co-decision in 37 new areas to Parliament significantly extends its influence. As a sector and an economy, we will need to change the way we interact with European institutions as more flows to Parliament and its committees. However, we are in limbo and our influence is reduced. If we do not ratify Lisbon, we will be left outside the treaty. As part of an isolated rump, it is very likely that the views and voice of the Irish food and drink sector will be considerably weakened, with consequences for the overall economy.

Mr. Malcolm Thompson

While the shock waves are still reverberating after the Lisbon referendum, it is vital that we make an honest effort to understand and comprehend what has happened. It is true that membership of the European Union is something which most people agree has brought important benefits to Ireland, to its agriculture, industry and commerce. However, I do not subscribe to the view that many people were fooled into a "No" vote or that they in some way misunderstood what it meant to say "No". If we continue to pretend this is the case, there is little hope of solving the dilemma and we are doomed to repeat the mistakes that led to the Lisbon treaty being lost.

The Irish Cattle and Sheep Farmers Association advocated a "Yes" vote. We did so knowing that we as a representative association have a particular interest in continuing to be advocates for farmers at both national and European level. We also came to the decision to support the referendum aware of the need for the Government to be able to continue to fight for our vital national interests, not just in terms of agriculture but in terms of all the decisions that are now made at EU level. However, I want the sub-committee to understand just how difficult it is to persuade our members that this is the appropriate stance to take. No more than the Government can, no more than political parties can, neither can we talk down to our constituency. We cannot assume that they would accept patronising or glib soundbites. They do not respond positively to being made feel subservient, nor do they believe they should be down on their knees in gratitude for EU supports.

The case for voting in favour of Lisbon has not been helped by the fact that France and the Netherlands voted against the EU constitution. Very few people believe that the Lisbon referendum is substantially different from the EU constitution. This is critical because when people come here from the EU to lecture us about Lisbon, especially politicians from countries which voted "No" to the constitution, it does not go down well. That is not to say that farmers' view of EU membership has changed. The ICSA and, I believe, farmers in general are firmly in favour of EU membership, which has been of clear benefit to agriculture and to Ireland. However, there is discord as to what further changes are necessary. Farmers know that the Common Agricultural Policy has existed since 1958 and that it is a central pillar of the EU as it stands today. That is likely to remain the case, regardless of whether there is an EU constitution, deeper EU integration or whether we run another referendum.

From a farmer's point of view, the question on Lisbon can be brought down to the implications of increased decision-making at Brussels level. While the Lisbon treaty is in essence about increased institutional efficiency in the decision-making process, it has also been seen as facilitating the ever-increasing power being vested in the EU bureaucrats. The goal of an even closer Europe is implicit in the desire for increased efficiency in the institutions and in the move to have EU representatives on the international stage being able to speak authoritatively on behalf of Europe.

The problem from a farmer's point of view is bitter experience. The experience of leaving it to the bureaucrats is forever associated in the minds of farmers with the negotiating tactics of Peter Mandelson at the WTO talks. It would not be fair to demonise Peter Mandelson because it is true that the whole Commission was on the same wavelength as he was. The EU Commission took a very clear and unambiguous line on cutting import tariffs as part of an overall WTO package. That would be very detrimental to farmers across Europe. Especially problematic is that despite repeated assertions by Irish Ministers that they were against an unbalanced deal, and despite their claim to have the support of the majority of member states, the member states seemed incapable of asserting their rights over the Commission. Regardless of how pro-Europe any farm leader may be, it is no easy task to convince farmers that allowing the Commission free rein is a good idea when they associate this with allowing the Commission to call the shots on the WTO.

The reputation of the EU is being undermined by inspections and penalties. Farmers are trying desperately hard to comply with very high standards of traceability, but the unyielding and unforgiving stance of inspectors is particularly difficult. As a farm organisation we are faced with the difficulty of persuading the farmer that these difficult decisions do not necessarily come from Europe. Tolerance is an area where we have serious complaints. When the Irish Government had a 98% tolerance level, this was deemed too low and unacceptable. The perception of Europe has not been helped by intransigence relating to the nitrates directive where a farmer is expected to calculate his stocking rate in the month of March. He does not know what weather conditions will be or what his financial position will be in terms of buying cattle. It is very difficult to predict in March what the nitrate requirements will be and what the cattle density will be throughout the year. The bureaucrats are not helped by some Irish politicians blaming Europe, saying that Europe made the decision. They find it surprising when that little white lie comes back to haunt them.

The feeling is that any further reform of the EU treaties or institutions — and this includes any re-run of Lisbon — must demonstrate that power should only be transferred to Brussels where there is an overwhelming case for it. We must look at what decisions can be taken in Ireland and make sure that those decisions are taken locally.

The fact that the EU seems to be in a constant state of change does not help in the task of explaining the EU project to our members. While EU enlargement to include ten new members has worked so far, where will it stop? Are Turkey, Ukraine and Georgia to be members? It is difficult to make decisions while not knowing where expansion will stop. We believe the European Union as it stands today has been a success and of huge benefit. Nonetheless, there is a growing resentment that too many of the most important decisions, and the least important decisions, are being taken in Brussels. It is more difficult for member states to influence the outcome. Further change in governance and institutional arrangements, not to mention political reform or geographical expansion represents a significant change to the EU which we know. Persuading people that such change is unreservedly in their interest is no small task.

Chairman

Thank you. I welcome Mr. Dolan and Mr. O'Leary to the sub-committee. I have to remind them that members of the sub-committee have absolute privilege but the same does not apply to guests appearing before the committee.

Mr. Ciaran Dolan

Thank you, Chairman, for the opportunity to put our views before this important sub-committee. In your letter of invitation you specifically requested that we deal with the challenges facing Ireland and the implications of the Lisbon treaty referendum results. We intend to put our views on those matters.

It might be no harm to refer to an oral presentation given by Jackie Cahill, president of the ICMSA, to the Oireachtas Joint Committee on European Affairs on 29 January this year. He stated that as we saw it there was no future for Ireland as some form of associate member of the European Union. He referred to several difficulties, including the role of the Oireachtas and the amount of legislation coming into force by way of ministerial order and statutory instrument rather than primary legislation. Some members of that committee said that Jackie Cahill was being negative. At that time any criticism of Europe was seen to be less than constructive. This was never our position. Equally it is important to point out that owing to various developments the attitude was growing among businessmen, farmers and the general public that what came from Dublin was good and what came from Brussels was bad. This attitude was promoted by public representatives. We have experienced the down side of that.

The ICMSA supported the Lisbon treaty, despite the fact that radically different views were strongly advocated by other people in our sector at that time and subsequently. We saw, and we still see, that our future is best served by ratification of the treaty. This is not a blind acceptance of what comes from Brussels but a balanced and rational assessment of the inevitable process of European integration and a calculated rating of the opportunities and challenges this may bring about. The ICMSA repeats its conviction that as a nation Ireland's rejection of the treaty was a major mistake which will have to be corrected. In recent times some constitutional experts have suggested that parliamentary ratification may be possible. Even if it is possible on a theoretical or constitutional basis, it is our view that we should not go down that road for several reasons. It would further complicate our relationship with Europe because it would be a stripped down version of the treaty which, as a consequence, would add to the complexity. A Minister attending an EU Council would have to absent himself or herself from certain procedures. These are precisely the disasters of associate membership to which Jackie Cahill referred.

Clearly, as a farm organisation we are not competent, nor is it our role, to advise public representative in political terms. However, the Oireachtas would make a mistake in going down this road and it would almost certainly give rise to a constitutional challenge. A successful constitutional challenge in court to parliamentary ratification would be worse than a second rejection at referendum. We are aware that the Government is currently involved in detailed consideration with our European partners and that ultimately the Oireachtas will have to decide formally on the mechanism to be adopted, either referendum or parliamentary ratification. Ireland is a small open economy and we cannot afford a form of semi-isolationism.

Perhaps the rejection of the Lisbon treaty arose from a certain affluent indifference to Ireland's position within the EU. Some anti-Lisbon groupings may have genuine concerns — no doubt they have — but there was the usual anti-everything lobby of individuals, a substantial number of whom were in very secure public sector employment with guaranteed pensions. They could afford to indulge in this campaign because the defeat of the Lisbon treaty came to them at zero cost. It is our experience that Ireland's influence in Europe at all levels has been affected by the result of the Lisbon referendum. It would probably be worse had it not been for the high calibre and hard work of civil servants from Ireland's past who built up a formidable reputation at European level. However, we should not fool ourselves that this tolerance will be permanent. It is at best temporary. It is also important to realise that we are in a holding position and that to some extent our European partners adopted an accommodating attitude to Ireland in an effort to encourage us and to facilitate us in our application of the Lisbon treaty. It may not be the ideal position for Ireland to find itself in, but it is the reality.

We would most definitely have preferred if Lisbon had been ratified and approved by the people last June so that the Government could focus on the real issues in agriculture and in the economy, in Ireland and beyond. We are fortunate that the WTO Doha negotiations are in abeyance, but they could be activated within a few weeks. We might find that we will pay a very high price resulting from the dilution of our influence. It is our experience that the current health check discussions, difficult as they are, have not been adversely affected to date by the rejection. We have only to look at recent developments at European level to realise that as a small open economy we are probably more dependent now on a European approach to solving the problems of our own economy, the European economy and the world economy.

It may be possible that the political and legal experts will come up with a declaration to be annexed to the treaty which will provide guarantees to remove some of the genuine concerns of the Irish people. It must be stated that such a declaration cannot be expected to alter fundamentally the very essence of the treaty, given that a significant number of member states have already ratified it. It would be less than honest for anybody to suggest that we can effectively renegotiate Lisbon.

The Lisbon treaty provides new roles for the Oireachtas, but even if the treaty did not provide for such roles and areas of influence, we would like to see a more active role adopted by the Oireachtas whereby it would be more accountable for the transposing of European legislation into Irish law. This in itself is important but clearly it has an indirect importance in making Europe more live to the Irish people. Progressively over the past 35 years, it is my experience that the Oireachtas has withdrawn from an active direct role in this regard. Given the growing influence of European legislation on virtually every aspect of Irish society, the Oireachtas must increase substantially its direct involvement and oversight in terms of legislation.

The ICMSA, virtually alone among representative bodies, lobbied hard in opposition to the amendment to the European Communities Act last year. The amendments, which were ratified by Dáil Éireann, allow any Minister to create indictable offences by statutory instrument. These offences carry severe penalties, including imprisonment. It would have been unthinkable for Dáil Éireann and the Seanad to have adopted a similar approach if the legislation originated in Ireland. Why should it be different at European level?

Whatever the final outcome of Lisbon, it is our view that primary legislation should be enacted to implement any far-reaching European legislation. I believe the Oireachtas can manage its workload to give effect to that. This would remove the nonsense where Europe is blamed for all our ills. More important, I believe it would give the necessary political and democratic oversight required to prevent unnecessary red tape and a more pragmatic approach in implementing EU legislation of all forms in Ireland.

We as a nation made a major error of judgment in rejecting Lisbon. We continue that error if we think that EU institutional reform is neither necessary nor desirable. Even before the international credit crunch and the turmoil in financial markets, the ability of the European Union to respond was being severely hampered by institutions designed and remodelled with each wave of new membership. Ireland is left with a choice that involves either full ratification of Lisbon or some form of associate membership. The last option would be disastrous for Ireland at a time when every principle of logic and reason would suggest that we should move in the opposite direction. Ratification of Lisbon will not be easy. It will require a robust response by Government and political parties supporting Lisbon. They must set out the arguments for ratification and meet head on the nonsense and misrepresentation which was allowed to gain momentum during Lisbon One. That is the challenge for, and the responsibility of, the Government and political parties. We, as social partners, will play our role.

I again thank the Chairman for the opportunity to address the sub-committee.

Chairman

I thank the delegates for their presentations.

Deputy Timmy Dooley

I welcome the three delegations and compliment them on a position paper which has been well thought out. Have the organisations which Mr. Kelly represents sensed any change in the mood of their trading partners as a result of the "No" vote? What other experiences have his companies had in that regard?

Do the two farming groups believe it was a mistake on the part of some in the farming sector to link the WTO talks with the Lisbon treaty? The WTO talks posed a significant threat to the farming community and the viability of farming in this country but there was nothing in the treaty which would affect our capacity to negotiate in that regard. Both groups advocated a "Yes" vote. Do they believe that, if our quandary is not solved quickly, it will impact on our capacity to continue to receive direct payments, not just in the context of the health check but beyond 2013?

Mr. Ciaran Dolan

As I am a paid individual and not elected, the first question should be directed at a different organisation. I cannot comment in that regard.

Deputy Timmy Dooley

I am not talking about any one organisation but there was a certain mood within the farming community at the time. I ask Mr. Dolan to refer to farmers rather than to a specific organisation.

Mr. Ciaran Dolan

I agree with the logic behind the Deputy's question. The farming and wider rural sectors were, to put it mildly, confused on the Lisbon treaty. That was why Mr. Jackie Cahill went to Tullamore on a Sunday morning to meet the Taoiseach, following which he came out in favour of a "Yes" vote. I am aware that what I say is on the record but if I ask others to be brave in making comments, I should ask it of myself. We did not take our decision lightly and were aware of the consequences within the sector. My only regret is that we did not state our position earlier but it must be borne in mind that it is a farm organisation, not a political body. When the tide was not very favourable to us, we did, after all, come out in favour of the treaty.

On the question of influence, we are in a holding position. I firmly believe we could face a de facto, imposed associate membership, in which our influence would be diluted. I apologise for repeating what was included in my presentation but the situation would be a lot worse were it not for the fact that we have exercised a lot of influence in the European Union, both at political and senior civil service levels.

Chairman

I am sorry to interrupt but, for the benefit of members who are also members of the Select Committee on Foreign Affairs, a vote has been called at that meeting.

Mr. Ciaran Dolan

Obviously, again, our national council must make a decision as to whether to recommend a "Yes" vote. Being aware of all the discussions and the downside of the first Lisbon treaty referendum, I expect the association to recommend a "Yes" vote. However, that must be decided by the national council.

Mr. Malcolm Thompson

Deputy Dooley's first question concerned the linking of the WTO talks with the Lisbon treaty referendum. It would be naive of us to think they were not linked in farmers' minds. Of course, they were. The WTO discussions were all about Europe and how Ireland would be affected by the talks. We saw a Commissioner, Mr. Peter Mandelson, who was chipping away continually at what Irish and European farmers considered was their right. The Commission seemed to be behind Mr. Mandelson. The politicians were telling us they were trying to hold him back but seemed powerless to do so. This was a snapshot of what Europe was like, in farmers' minds. Whether that was right or wrong did not matter. One might argue that view was totally wrong but it was the picture Irish farmers had of the WTO.

Deputy Dooley asked if direct payments after 2013 would be affected by Ireland's stance on the Lisbon treaty. The simple answer is that the issue of direct payments, post-2013, will be decided by 27 member states, not only by Ireland. For better or worse, one out of 27 amounts to very little influence. After 2013, our level of influence on direct payments to farmers and the future of the CAP will not be relevant.

Mr. Paul Kelly

Members asked if our members were experiencing difficulties with their trading partners. The answer is no. We still have a single market. Regardless of whether the treaty is ratified, that will continue.

Agriculture is probably the most highly regulated of all sectors. There is a constant flow of regulations coming from the European Union. We may have issues regarding the interpretation of EU legislation and the zeal with which it is applied at national level, but the legislation is developed in the European institutions. The extent of our interaction with the institutions as legislation is developed is key to our industry. I am talking about the Commission, the Council of Ministers and the Parliament. As a small nation, we have punched above our weight in convincing other Europeans of the Irish position. That applies to the country generally, not merely to our sector.

We find ourselves in limbo. If there is no ratification of the treaty in Ireland, we may find ourselves forming an isolated rump and our influence will be significantly diminished.

Deputy Lucinda Creighton

I welcome our guests and thank them for addressing the sub-committee. We are engaged in important work and appreciate the time they have taken to come here.

The WTO issue has been raised by Deputy Dooley. I am a little perplexed by some of the responses. I appreciate Mr. O'Leary's point that the decision to have an unconditional endorsement of the Lisbon treaty was made too late, but hindsight is great.

One of Mr. Thompson's comments alarmed me. He stated people, particularly farmers, should not believe they should get down on their knees in gratitude to the European Union for financial support. That is a fair point, as no one is expected to grovel, but there is a legitimate expectation people should be constructive and recognise EU assistance. As a member state, it would be remiss of Ireland not to do so.

I am a member of the Joint Committee on European Affairs. I attended the meeting in January at which Mr. Thompson's organisation and the IFA addressed us. Absolute support for the Lisbon treaty was promised, but it was subsequently retracted. I am not asking Mr. Thompson to speak for the IFA, but its backtracking was disappointing. While the IFA is not ungrateful to the European Union, it has a blinkered view of how the Union operates and how important it is to enjoy good will and maintain Ireland's good standing. The decision was regrettable.

Some of the farming organisations should have separated the Mandelson issue from that the Lisbon treaty which is specific and would strengthen the hand of national parliamentarians who are elected to represent people's opinions. The treaty would also allow for greater legitimacy and accountability at European level. Given the interests of the members of our guests' organisations, it would have been an important and progressive step. It is regrettable that it did not occur. It is fair to state the lateness of the endorsement of the Lisbon treaty by the farming organisations contributed to the outcome. The Saturday following the referendum I sat at a table at a wedding with Cork farmers, each of whom had voted "No" because of the Mandelson issue. The organisations left it too late to ask farmers to change their minds after 10,000 people had marched down Molesworth Street to Leinster House. It is important to make this observation because it is easy to kick the ball into the politicians' court. I note that the reference is always to all politicians, but my party is in opposition and does not run referendum campaigns. That is the Government's job. We were in the same boat as others, but made a great effort. I was disappointed with the outcome, but it is unacceptably easy to tar all politicians with the same brush.

Mr. Kelly appeared before the Joint Committee on European Scrutiny to discuss labelling and various EU proposals. Concerns about over-regulation were expressed by a variety of organisations, including his own, but he can correct me if I am wrong. How did over-regulation influence the perception of the Lisbon treaty and the European Union? Did it contribute to the outcome of the referendum?

In the event that there is a second referendum on reforming the institutions of the European Union, what changes in the treaty do our guests and their sectoral interests want? Do they want a new treaty or additional protocols or declarations?

I seek clarification from Mr. Thompson of his answer to Deputy Dooley on the post-2013 scenario. He said the outcome of the Lisbon treaty referendum would be irrelevant. How can he draw that conclusion because, clearly, good will and influence are very important, with the CAP health check? That is certainly the view of the Departments of Agriculture, Fisheries and Food and Foreign Affairs. How can Mr. Thompson assert that voting "No" will have absolutely no impact?

Mr. Paul Kelly

We appeared before the Joint Committee on European Scrutiny to discuss the draft food information regulation which proposes to pull together all aspects relating to food information labelling. Our concern with the draft regulation which is shared by the food and drink industry in Europe is that there are a number of voluntary agreements in place. There is an EU platform on diet, health and physical activity to which many organisations have signed up. The food and drink industry has signed up to it, as have various non-governmental organisations. The European Commission is central to it. Our main concern is that we have a series of voluntary agreements which are being reviewed on an annual basis and suddenly, almost from left of field, another part of the Commission has come along and proposed certain measures in the draft regulation which will ride roughshod over some of the aforementioned voluntary arrangements. This is indicative of one of the problems we have with the Commission. On certain issues — this is broadly concerned with obesity — there is an unco-ordinated approach at EU level.

Representatives of the European food and drink industry association visited Ireland last week and were interested in the set-up here — there is a Cabinet sub-committee which deals specifically with the food and beverage sector. It emanated from the last programme for Government and is, in turn, supported by a high level interdepartmental committee. This is something for which the food and drink industry had been calling for a number of years because we interact with several Departments, including the Departments of Agriculture, Fisheries and Food; Enterprise, Trade and Employment; Health and Children; and Communications, Energy and Natural Resources, as well as a wide range of State agencies. We deal with all aspects of the supply chain and a wide range of issues to do with regulations and national governance affect us.

We have argued that the Irish model could be applied in the European Union. If it was applied and there was a greater level of co-ordination on food issues along the supply chain between the various directorates, the approach would be more coherent. In that context, we would not have issues such as the one arising, whereby a voluntary system which was working well would be hit from left of field by a regulation.

Mr. Malcolm Thompson

I am delighted to say mine was not one of the farm organisations which took part in the demonstration on Molesworth Street. I am clean, in that respect.

Deputy Creighton asked about the association of the WTO talks with the Lisbon treaty in the minds of farmers. Farmers are intelligent people who read newspapers. They can see that their national politicians and MEPs are not being listened to. Whether we like it, there is an apparent unwillingness on the part of the European Commission to listen to the views of member governments. It seems to be running its own agenda and telling governments that it will act in a certain way, with or without their support. This is a bigger issue than just the WTO talks. It cuts right across the board and is the impression the European Union is giving to observers. I am trying to be constructive. I am pointing out to the Government and members of the sub-committee that the fault does not only lie with us. It also lies with the European Union in the way it has been perceived. It is perceived in a negative light because of the way it acts. We in Ireland cannot take all of the blame. The EU must consider what type of message it is sending out, must clean up its act and convince the Irish people it is not made up of dictators.

On the post-2013 situation, I am not suggesting we have absolutely no influence; we are but one of 27 member states. It would be wrong of me to scaremonger and say otherwise to Irish farmers. One must bear in mind that people have paid the price for misleading farmers in the past. Our organisation believes we should tell it as it is; we should tell the truth. I do not want to be accused of scaremongering and of saying to farmers that if they vote "No" to Lisbon they will lose their single farm payments as that would be totally wrong. We are but one of 27 members of the European Union. Voting "No" may have been the wrong decision — we advised our members to vote "Yes" — but it would be wrong to say to them that voting "No" would result in their losing privileges.

Deputy Lucinda Creighton

I appreciate that Ireland is but one member state but would Mr. Thompson not agree that through goodwill and having a good relationship with the European Union we can punch about our weight and thus have additional weight in regard to these matters?

Mr. Malcolm Thompson

I believe we have in the past punched above our weight for a variety of reasons, some of which related to personalities. As lobbyists in Europe we all have our connections and, in fairness, we have got on very well with our European counterparts, politicians and the Commission and have been able to punch above our weight. I do not believe this stance has been jeopardised. I believe we will continue to be able to punch above our weight and foster good relations with those with whom we deal in Europe.

Mr. Ciaran Dolan

While I do not speak for any other organisation, it would be wrong if the sub-committee was to get the impression that farmers are to be blamed for the rejection of Lisbon. There were major issues in regard to the WTO. I repeat what I said earlier, that the political establishment did not address these issues. Equally, we did not, even subsequently in Tullamore, give an unqualified acceptance to Lisbon. Our acceptance of it was conditional on the Government pursuing the matter of a favourable outcome at the WTO and we were entitled to do this.

It is important we do not skim over historic facts. I address those issues to provide a background in terms of where we go in the future. Our future is in Europe. We will do our part, which is limited, as social partners. We believed there was a good story to be told about Europe but the message was not well received. I attended a meeting of a joint Oireachtas committee in Limerick at which 14 or 15 other people were present. Most of the people attending that meeting were politicians and committee staff. I do not blame the Chairman or members for this. However, Lisbon did not excite people who would normally vote "Yes" in referenda. This time round, rather than being critical of any individual organisation, we should ensure this scenario is not repeated.

We are convinced that our future is in Europe. This is not a passive acceptance of all that is thrown at us. I believe we can again, through early ratification of Lisbon, get back into the mode of ensuring our influence is greater than our critical mass in terms of inhabitants or citizens.

Senator Rónán Mullen

I thank our guests for their presentations. I apologise I was not present to hear all of them but I listened to the proceedings while in my office dealing with some urgent business.

I wish to ask them a couple of questions. First, I wish to tease out a little Mr. Kelly's observations about his organisation's influence. His perception is that it has not lost influence with its trading partners. While it might be a bit early to tell, may I take it from this observation that among those with whom he deals, there is no perception that the "No" vote to Lisbon amounted to a stepping back by Ireland from the European Union in a manner that would cause them to be more reluctant to deal with the businesses and enterprises he represents? He also should develop further his comments on the possibility of influence being lost internally in his dealings with institutions of the European Union, such as the Commission and so on. Would he ascribe this to vindictiveness or how would he rationalise such a loss of influence? Obviously a certain amount of negotiation is involved but is this a simple matter of being punished? What does he perceive to be the basis for this?

I was fascinated by Mr. Dolan's comments on legislation and the impact of potentially far-reaching legislation coming from the European Union and being transposed into Irish law by means of statutory instrument and so on. Has he examined this issue in depth with legal advice? In other words, in the context of a possible second bite at the Lisbon cherry, what would he prioritise on his wish-list? How does he envisage that this difficulty will be resolved?

Third, I wish to raise the issue of climate change with the witnesses. A recent newspaper report suggested that one Minister was not of a mind with another. I believe it pertained to the quantity of methane being produced by Daisy and her comrades. Ultimately, however, I am unclear what precisely this had to do with Ireland and our obligations in respect of climate change and reducing emissions. Do the witnesses find the issue of climate change to be an obstacle in discussions on the European Union among farmers and food producers in general?

Mr. Malcolm Thompson

The issue of climate change is not one about which we hear much on the ground. It is an issue we are driving from the top, rather than from the bottom and we certainly hear about it in Europe. We disagree strongly with the Minister who was particularly critical of Daisy and her problems and we certainly perceive this to be absolute nonsense.

Cattle are produced in Ireland, which is one of the best places in the world for producing cattle, on natural grass and such cattle are near the marketplace in Europe. Were those cattle to be produced abroad in locations such as Brazil or elsewhere, not alone would Brazilian Daisy do the same thing as Irish Daisy, but Brazilian Daisy must be transported across the Atlantic in a ship that would burn gallons upon gallons of diesel or whatever they burn.

This is an absolute nonsense and such issues do not help the argument on climate change, about which real issues face us that must be dealt with. We held a recent meeting and discussion on this subject and envisage that much balance with regard to climate change will be achieved through consideration of the number of trees in Ireland. The question has been asked whether such trees are allowable in respect of carbon credits and there is a question mark in the EU as to whether our forestry should be allowed. This is absolute nonsense because forestry is as much a part of farming as is Daisy in these days of straitened circumstances for farmers. It is extremely important to state that while Daisy may be causing a little problem in Ireland, forestry and grass act to compensate for it. The increases in carbon emissions in Ireland have come from transport rather than from agriculture. Whereas the level of carbon emissions from agriculture remained static or have decreased to some extent in recent years, those relating to transport doubled during the same period. Any Minister who states that there is a need to reduce carbon emissions from agriculture is living on the wrong planet and needs to return to his schoolbooks in order to discover where the problem has arisen.

Chairman

I must interrupt Mr. Thompson and call on Mr. Dolan because there is to be a vote in the Seanad at 7 p.m. and most members will be obliged to leave.

Mr. Ciaran Dolan

The legislation is completely within the remit of the Oireachtas and there is no actual prohibition in the treaty. In 1972, the Members of both Houses of the Oireachtas ensured that the European Communities Act did not devolve to a Minister the power to create an indictable offence. The latter is only of recent origin. Our view is that where sanctions of that nature are required by the EU, they should be introduced by means of primary legislation. We are aware of the origin of this. The EU would not sign off on the nitrates programme unless more severe penalties were introduced. We have reservations about such penalties. However, we fundamentally object to the way in which those penalties were introduced. The amendment to the European Communities Act allow the Minister, by means of a statutory instrument, to create indictable offences. That is unprecedented and should not have happened.

The consequences of what occurred is that over time the Oireachtas is being pushed into the background. I am of the view that the Houses have a role to play in the context of oversight and that it should scrutinise that legislation. It is not sufficient to say, for the purposes of convenience and time, that major legislative provision will be made by way of statutory instruments. Dáil Éireann should be the body charged with creating indictable offences such as those to which I refer. I am aware that in certain cases — there have been Supreme Court rulings in this regard — regulations or directives coming from Europe are directly applicable and that Dáil Éireann does not have any influence. I am not referring to situations of this nature. Where the EU Commission demanded more severe penalties, however, the Oireachtas should have been consulted and should have made the decision.

Mr. Paul Kelly

On Senator Mullen's question on trading partners, many businesses would see the European Union and treaty-related arrangements as being somewhat administrative in nature. They are administrative in the sense that our regulatory framework emanates from them. The regulatory risk issue is central. In the main, however, it will be the commercial relationships with trading partners that will prove important. The food industry is under major pressure in domestic and export markets at present. Currency issues, the volatility of commodity prices and, in particular, extensive retailer pressure and buying power are concentrating people's minds at present.

If I may, I will deal with the Senator's other two questions together. One of the relevant points with regard to the climate change package is that Ireland's greenhouse gas profile, which is similar to those of Australia and New Zealand, is unique in Europe. This reflects the importance and size of the agrifood sector here. As a result, we are exposed to a greater degree of risk regarding the decisions we made in respect of the climate change package than are many other countries in Europe. We are exposed in terms of our status as an exporter within the EU and as a result of the importance and extent of the industry here.

Some countries in Europe with huge heavy industry bases have successfully developed the concept of carbon leakage. This concept runs along the lines that if the climate change package is imposed to a major degree, their heavy industries and the associated carbon emissions will move offshore. Ireland probably needs to consider the issue of methane leakage. In that context, we must examine the position with regard to beef and dairy products coming from Brazil and New Zealand, respectively, rather than from Ireland. We will probably need to be at the forefront of developments in this area and the manner in which we can impose our influence at the EU institutions will be extremely important.

Reference was made to trees and the amount of EU funding allocated to the agricultural sector. A large amount of that funding comes to the sector in the form of payments for the REP scheme, which concerns environmental stewardship and the management of the countryside and has a very positive carbon benefit. We need to develop concepts such as a balance sheet at farm and agri-food level. We are a long way from achieving the targets for methane and greenhouse gas emissions under the climate change package and the associated legislation but if we included REPS and the effect of trees in an approach that incorporated a balance sheet the picture would be completely different.

The 20/20/20 climate change package targets greenhouse gas emissions in the traded sector and transport and agriculture in the non-traded sector. It also targets bio-fuels which, as the members will probably be aware, have had a significant impact on commodity prices in the past two or three years because the food industry had to compete for feedstock with parts of the energy industry. The social consequences have resulted in a retreat by the European Union and the national authorities from the original targets. There is no reason we cannot review other aspects of the climate change package, particularly those relating to greenhouse gas emissions and the agri-food sector, which is unique.

We also believe food security and food policy need to be addressed. In the case of transport, we can move people on to public transport or require more efficient engines. We can also change Daisy's diet and improve on other aspects of agriculture.

Senator Rónán Mullen

She is quite headstrong. She has her needs.

Mr. Paul Kelly

She is quite headstrong and our scope is limited. All we may achieve is to leak the methane from Europe to other parts of the world where there are much less sustainable systems.

Chairman

I thank the Mr. Kelly. I thank the delegates for attending at this late time of day. We will meet several delegations from a variety of areas and we appreciate their flexibility. Their contributions will be used to frame our report, which will be ready by the end of November. I also thank colleagues, who have worked with me since 10 a.m.

The sub-committee adjourned at 6.52 p.m. until 9.30 a.m. on Thursday, 13 November 2008.