JOINT COMMITTEE ON EUROPEAN AFFAIRS (Sub-Committee on the Review of the Role of the Oireachtas in European Affairs) debate -
Wednesday, 28 Apr 2010

Role of Oireachtas: Discussion.

Chairman

I draw witnesses' attention to the fact that members of the committee have absolute privilege but the same privilege does not apply to witnesses appearing before the committee. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against any person outside the Houses or an official by name or in such a way as to make him or her identifiable.

I am very pleased to welcome Mr. Michael McDowell, SC, and Mr. Anthony M. Collins, SC, to the committee. We are very much looking forward to their contributions to hearing their views on the work we will do during the time this sub-committee will be in existence. I invite Mr. McDowell to address the committee first followed by Mr. Collins. I will then call on members to make comments or ask questions.

Mr. Michael McDowell

I thank the sub-committee for the honour of inviting me to appear before it today to attend the meeting of a body which has a very important role in the development of our Parliament. At the outset, I want to put my words in the context of the passage of the Lisbon referendum. Prior to it, the involvement of the Houses of the Oireachtas in European affairs was one which gave some cause for concern. In theory, there was scrutiny of secondary European Union legislation and consideration and scrutiny of events in Europe, but as a former Minister for Justice, Equality and Law Reform - Deputy Joe Costello will hear me out on this - I found the extent to which it was possible to conform with the practice of bringing before the Oireachtas for detailed consideration agenda items and upcoming Council meetings was fairly limited.

It was my experience meetings were held early in the morning or late in the afternoon - they were more likely to be in the morning - at which the Minister arrived with a retinue of officials and a large volume of paperwork which had been given 24 or 48 hours earlier to members of the committee. The background to the legislative proposals and the agenda items of the Justice and Home Affairs Council was not explored in any great detail. I say this in criticism of nobody; it is a reflection which includes myself. There was a tendency for those discussions to dilate onto more topical issues of justice and home affairs in this jurisdiction rather than concentrating on what Europe was proposing to do.

When I was Minister for Justice, Equality and Law Reform I went to the House of Lords to appear as a witness before its committee on European affairs, in conjunction with hearings it was having on justice and home affairs, the opt-out and the emergency break clause which were then under negotiation. It struck me at the time - this is no criticism of anybody - that this measure was receiving far more detailed consideration in Westminster than it received in Leinster House, although it was of equal importance to both jurisdictions. Arising from that encounter, it struck me that it had done a lot of work and had a good deal of research behind it by way of backup. When it invited me and other witnesses, including academics and European jurists, to talk about it, it was very well briefed on the subject it was discussing. Its questioning was particularly to the point and searching.

That all points to what I consider is a real problem for the Oireachtas, based on my experience and observations. Things may have improved since I was here; I am slightly beyond my sell-by date in respect of current practice. It occurs to me, in particular in the context of the passage of the Lisbon treaty, that the Oireachtas has to up its game very substantially.

A number of issues should be referred to the joint sub-committee. As the committee knows, the amendment to the Constitution envisages new roles for the Oireachtas in respect of the veto that either House has over a number of matters that require resolutions of both Houses if the Government is to proceed. The options and discretions that are generally vested in the Government and Ministers at Council meetings under the Constitution to agree to propositions that could be binding on Ireland and that could a have constitutional dimension must be approved in advance by each House of the Oireachtas.

In addition, there are new provisions in the amendment to the Constitution that deal with the question of the passerelle clause, in respect of which the Irish State can consent to matters that are now the subject of a requirement of unanimity, the corollary of which is that we have a national veto. That could be voted away by Ireland agreeing to the passerelle procedure under the new European treaty, bringing it from the area of unanimity to qualified majority voting, QMV. The new constitutional provisions specifically vest in each House of the Oireachtas a veto over such an adoption of a passerelle resolution. Those who believe in a single chamber House should reflect carefully whether it is desirable that a single chamber on a single day can pass a single resolution that could get rid of our veto in respect of taxation or other areas.

The other major aspect of the Lisbon treaty is to do with the role of member state parliaments in the scrutiny of European Union legislation. There is an entitlement for the first time under the treaties for parliaments in member states to be notified in advance of legislative proposals, to be consulted on them and to resolve to send declarations of opposition based on a number of issues, including subsidiarity.

This new role for parliaments in the EU legislative process requires a dramatically upgraded commitment in terms of legislative time and effort by each member state parliament. The principle of subsidiarity is frequently misrepresented in Ireland. It is not the principle that the European Union gives down from the centre those functions that are best executed at member state level; it is the exact opposite. Only those matters that can only be dealt with on a centralised basis fall within the competence of the European Union to deal with. From that point of view, the view of individual member state parliaments on the issue of whether new measures proposed by the Commission and going through the European parliamentary process accord with the principle of subsidiarity is something on which each member state parliament must now come to a view and exercise the entitlement of the people not to have measures taken that breach the principle of subsidiarity in the terms I have just outlined.

In the real world, Oireachtas Members have many calls on their time and commitment and they also appreciate that they could put a lot of effort into scrutiny that would go completely unrewarded and unacknowledged, especially by the media. This is a twofold process. If the Members of the Houses of the Oireachtas up their game, there will be a response from the national media to acknowledge what they are doing and the value of their work. By the same token, it is reasonable for the Houses of the Oireachtas to look to the media to ensure this process of scrutiny is not sidelined in favour of soundbites on the Order of Business, which are so much easier to report, when other much more valuable work is more boring or difficult to explain to readers.

Mr. Anthony M. Collins

I welcome the opportunity to address the sub-committee on this matter. Without any advance co-operation we have managed to break down the areas of concern to both of us. This was perhaps achieved through telepathy. My emphasis is on the new area of scrutiny of Community law by national parliaments because, traditionally, national parliaments' only involvement in the adoption of EU legislation was through the scrutiny of executive action and that varies considerably from state to state. The functions of the Oireachtas has been strengthened in that regard by the 2009 Act and I agree with Mr. McDowell in everything he had to say about that work.

I want to look at the question of the new powers that have been given by the Lisbon treaty, especially those powers given to national parliaments to review and challenge legislation on the grounds of subsidiarity. We could see this as being a substitute for a second house of the European Parliament. Not only does the EU have a parliament, that parliament has considerable powers, which was not the case ten or 15 years ago. The democratic deficit issue, which received a lot of publicity, has been ameliorated to a great extent. If the electorate chooses not to participate in elections at national or European level, it must take the consequences. It could be argued, therefore, that every national parliament should send delegates to a second chamber that would have a review function similar to that in the Bundesrat in Germany but that would overlook the fact that the EU is not a federal body but rather a collection of member states lying somewhere between a traditional federal state and an international organisation. It is sui generis.

The powers that have been given to national parliaments to review legislation in this aspect and challenge it on grounds of subsidiarity are limited. It is important to understand how limited the principle of subsidiarity is because it should not be confused with the principle of the attribution of powers. Subsidiarity only comes into play when dealing with the existence of powers that have already been conferred on the European Union. Where the Union enjoys exclusive powers, subsidiarity does not apply. It only applies where the Union has powers and will exercise them, which it already has, and will exercise them in a way that is considered to be inappropriate from the point of view of ensuring decisions are made at the lowest possible level. That scope exists in areas such as tourism, youth, transport, sport and so on but it should not be ignored that such possibilities exist even in areas such as agriculture, fisheries and transport where there are common policies and where the Community occupies most of the terrain but not the entire terrain. The example that springs to mind is inland fisheries. The Common Fisheries Policy is a complete policy and member states are deemed to have transferred sovereignty in that regard, but when it comes to inland fisheries, they have not done so. This means that if the Union adopted legislation in the field of inland fisheries, it could be asked if that is appropriate in the light of the principle of subsidiarity.

That brings me to the next point. Subsidiarity is fundamentally a political rather than a legal construct. It is easy for lawyers to deal with the attribution of powers, saying whether a Minister, a state or the EU has power. Under the Lisbon treaty an attempt has been made to set out clearly what powers are attributed to the EU. All such powers are attributed by the member states, as the EU has no inherent powers of its own.

Assessing the application of subsidiarity involves dealing with matters of fact and degree rather than law. It is therefore not a matter for lawyers, but should be dealt with at a political level.

That is reflected in the case law of the Court of Justice. To date, the court has not had many opportunities to consider subsidiarity but when it has done so, it has never interfered with the substance of the decision taken. It has ensured that the body in question has adequately investigated the issue and reached a reasoned decision, but it has never overturned a decision due to subsidiarity. That is important.

The main benefit of giving new responsibilities and powers to national parliaments is that it will frontload their work in reviewing EU legislation. In order to review legislation adequately with regard to subsidiarity, the legislation or legislative proposals must be examined in the first place. If one is considering one aspect, one would, to be efficient, examine other important aspects too. If things spring off the page, or important matters arise, they can be reviewed at the same time.

One of the biggest problems relating to the review of EU legislation in this jurisdiction has been that it is done too late. Parliaments and the executives are constantly on the back foot. Now that the Oireachtas must examine the legislative proposals with regard to subsidiarity, it can examine them from other perspectives too. That is the case even if no subsidiarity points are noted, or if a point is noted but an insufficient number of other parliaments agree.

It will be interesting to see how the case law pans out in that regard. I do not anticipate that there will be any cases, and I do not believe that any cases that arise will ultimately succeed.

The new powers will allow the national parliaments time to address real problems with the legislation that member states make in the Council. If a parliament notes the problems early on, it can better scrutinise the work of the executive in deciding on the legislation. That is a major structural benefit. It prevents a situation in which everything is backloaded and dealt with at the last minute, and in which little can be done apart from tweaking a few things.

I would not be surprised if the powers of national parliaments to review legislation were expanded in future treaties. That is just speculation at present, but it may be possible down the line. Whether it happens depends on a number of factors that are completely unforseeable at present.

One consequence of that type of structure is that - at least in one regard - it requires national parliaments to work in a manner more akin to the way in which the European Parliament carries out its business. It is impossible to carry out such tasks in an adversarial fashion. Some staffing and resources must be available to do the groundwork, and there must be some form of consensus on how matters should proceed.

Consensus will not be reached in every case, and there will be differences. However, national parliaments would have to take a position, as the European Parliament often has to do on legislation in court cases before the Court of Justice or in its intra-institutional dealings with the Commission or the Council. In the long run, that might have an effect on how - at least in European affairs, which are now nearly all-pervasive - national parliaments carry out their tasks.

The European Parliament is, of course, a far cry from national parliaments, because there are a number of different breaking points - there are national delegations, political groupings and so on. Nevertheless, there is to some extent more freedom than one might have in a national parliament to work in a co-operative manner with other members and try to do something qua parliament and qua representative of the people rather than representating a particular parliamentary group.

Those are my only observations at this stage. I am happy to answer questions or make any further contributions. I thank the Chairman for the invitation, and the committee members for entertaining the presentations.

Chairman

I thank both witnesses for their interesting and stimulating presentations. A number of members are offering to ask questions. I call Deputy Joe Costello, Senator Alex White and Deputy Michael P. Kitt in that order.

Deputy Joe Costello

I welcome both speakers - Mr. Michael McDowell - I almost called him Minister McDowell - and Mr. Anthony M. Collins. One might think that no more legislation needed to be passed in the House after Mr. McDowell had finished as Minister for Justice, Equality and Law Reform. When I was Labour spokesperson on justice, his Department was pouring out legislation and putting it through the House. I am afraid things have changed, and not as much legislation is coming through the House as was the case when he was Minister.

Both witnesses made informative and valuable contributions. The only development that has taken place since Mr. McDowell's time in the House is that we now have two separate committees - a Joint Committee on European Affairs and a separate scrutiny committee that deals with the scrutiny of legislation.

We seek to review the role of the Oireachtas in European Union affairs. We want to determine how the Oireachtas as a body - the Seanad and the Dáil - can play a meaningful role in dealing with EU matters. We will consider that role in the context of how the Oireachtas and the Executive, rather than just the scrutiny committee and the Joint Committee on European Affairs, operate.

As a starting point, we will consider how the activities of the Oireachtas, rather than simply committees, can be made more central to the new powers. I am interested in hearing what changes the witnesses think could be made to the way in which we conduct our business in both Houses - for example, to our Standing Orders or the operation of the Houses. I would like to hear their views on how European matters post-Lisbon - issues that come forth directly from the Commission - can be made more central and can get a better hearing. Major issues to do with justice, climate change and other matters are coming forward in the context of transposition of legislation, which is largely done - and has been for some time - by statutory instrument.

The witnesses - especially Mr. McDowell, as he has been a practitioner in the House - might be able to advise us on how we can expand the role of the Oireachtas and the business of the House.

More powers have been given to the European Parliament than have been given even to the national Parliament, and it now works under the co-decision procedure with the European Council in virtually all matters. We may face the danger of those two bodies ganging up. They get together to conduct their business at an early stage and make decisions, which leaves very little for anybody else to come in on.

To date, the role of the Oireachtas in scrutinising legislation and the measures coming through has been to act as a watchdog holding the Executive to account. Should that role now involve more co-operation, in which much of the material that comes through from Europe is dealt with by sectoral committees? Should the Oireachtas and the Executive work as partners in the best interests of the country? Is that the way to enhance the role of the Oireachtas rather than introduce, as many countries have done, a scrutiny mandate which is geared strongly to keeping a close eye on the executive? Is that appropriate in the context of our strong Executive?

I am especially interested in the proposal by Mr. Anthony M. Collins in regard to subsidiarity. It is a political concept rather than a legal concept. The implication is that the area of subsidiarity can be interpreted very widely, that virtually any matter coming through from the European Union is subject to an interpretation of subsidiarity or can be and that it is up to the member states to determine whether to treat it as such. That would expand to frontloading scrutiny of all the matters coming through and would be very valuable rather than leaving it to a later stage where the scrutiny would be done after many of the decisions had been made.

After the decisions are made and directives come through for transposition into law, how best can this be done in a meaningful fashion? At present it is not done in a meaningful fashion. Have the delegates any views on that matter?

Both delegates strongly believe that the earlier there is intervention by the Oireachtas, the better and that there could be intervention in the drawing up of draft proposals in the context of the new Lisbon proposals. The earlier one gets to where the decisions are being made, even at pre-decision stage or during decision-making stage, the more desirable that is. In the overall enhanced role set out by the delegates, we would be interested in any practical proposals for the structures that might be put in place to ensure the Oireachtas can play the most meaningful role possible.

Senator Alex White

I, too, found both presentations stimulating and interesting. In respect of the last point raised by Deputy Costello as to what practically can be done, I am not in a position to say whether the position has improved or otherwise since Mr. Michael McDowell was a Member because I was not a Member. Recently I became a member of the Joint Committee on European Scrutiny and I am starting to get my head around how, as a Member of the Seanad and the Oireachtas, one can make a meaningful contribution. I do not know the answer to this and it is not a criticism of anybody. The first problem is that one is presented with a list of measures. I know from another life that the lawyer is used to looking at lists, but there may be five pages or 30 pages of them. On reaching pages 21 or 22, the problem is to assimilate and decide what is important because one has only got a certain amount of brainpower to apply to a systematic list of measures. Returning to the practical point raised by Deputy Costello, how do we identify what is important and give ourselves time to talk about that rather than getting bogged down in extensive lists of measures, many of which may not be particularly engaging or require to be addressed? How much can one tell simply from the title of a measure and a paragraph of a summary? How can one assimilate large amounts of information, lists of measures, proposed measures and so on or is there some clearing house method that we need to think about? That would be a political judgment. It would not just be a technical judgment as to what is important. People might have different views.

The second issue that occurs to me, having listened to what has been said, is that the earlier the intervention by the Oireachtas, the better. For reasons we do not have time to debate today, very often the intervention by the Oireachtas in truth is the intervention by the Government because inevitably the gatekeeper for many of these issues would be the Government. That is because that is where most of the expertise lies and where there is early knowledge of what is happening. Ministers who are over and back to Brussels know what is coming down the tracks while ordinary members of the Oireachtas, whether of the Dáil or the Seanad, do not have a clue.

Early intervention will not happen spontaneously. Most of the time, debate is ordered by the Government. I am not suggesting the Government is trying to stop debate. Perhaps it does sometimes but that is not the point I am making. In practical terms, the flow of business in both Houses is largely ordered by the Government. Do we need to face up to that situation? It would be a pity if we did not try to push forward the role for Parliament as opposed to the Government. How do we get around the fact that, inevitably, it is the Government that has the knowledge and the expertise and, ultimately, is the gatekeeper?

In regard to the media and the type of material it uses, presumably part of what we will try to do is engage the public, not just to find an easy way of dealing with the bureaucracy of how we move business in the House and get through our meetings quickly and so on, but in the bigger project of law making and European law making, which is the democratic deficit that is constantly pointed to. We have a significant role in doing that. I accept the media has a massive role to play in that regard. However, we cannot blame the media if we, as politicians, have not devised a means of identifying material that is interesting and engaging and putting it out for public debate in such a way that people can understand it. It does not matter how mellifluous one’s voice is, if one stands up in either House and reads out the telephone directory, one cannot expect RTE to put it on the air because nobody in their right mind would watch it. The same is true, unfortunately, of much of the material in the inevitably indigestible form in which it comes. I am describing Government rather than coming up with answers. Is it about how the business is ordered as well?

We have endless debates and statements in the House. I make a ten or 12 minute speech on whatever statements or issues are in the Seanad. Mr. Anthony M. Collins made an interesting point about the European Parliament. Should we have more regard for what is happening in the European Parliament and, dare I say, try to shadow it? The European Parliament has listed and ordered all the measures it is required to debate and on which it has to make decisions. Observing what it is doing might give us a glimpse of what we should be doing in respect of many of these measures and the manner in which it orders its business. I am merely asking questions. I do not have the answers.

Deputy Michael P. Kitt

I, too, welcome the guests. We are all learning more about the operation of the committee system. I became a member of this committee last autumn. When I mentioned to some colleagues in my constituency that the committee was about scrutiny, some people thought our committee could prevent EU directives we did not like coming into operation. There are some marvellous directives on the environment, most of which are welcome. However, if a person was told he could not cut turf where he had always cut it, that was a "no, no". For example, some people thought the committee could prevent the habitats directive coming into operation, which is not the case. I do not blame the European Parliament for that but many do. The blame is misplaced.

Mr. Michael McDowell and others raised the issue of the media. I am disappointed by the coverage of the European Parliament which is similar to the way in which the Dáil and Seanad are covered. "Oireachtas Report" is shown late at night, as is "The Week in Politics" on Sunday night. The "European Parliament Report" is broadcast after that programme at almost midnight, which is a crazy time to show a report of the debates there. Perhaps this committee could raise that issue.

I strongly emphasise that we, as politicians, should have advance warning of what is involved in forthcoming directives. As Senator Alex White said, legislation is often produced by the Government or the relevant Minister and we do not have much time to discuss or make changes to it. It is a fait accompli. In the Irish context there may be a lobby group or some advance warning of what proposed legislation involves, whereas there is no such advance warning of what is involved in legislation introduced on foot of a European directive. That is a matter we should address. Deputy Durkan suggested that committees in this context should work more like the Committee of Public Accounts rather than a Government versus Opposition type committee, which would be the standard adversarial nature of politics in the Dáil.

I was interested in what Mr. McDowell said about the role of the Seanad and that of our two Chambers. He spoke about the role in scrutiny of legislation, in which Senators play a significant role, but such scrutiny would be diminished if we had only one Chamber.

The concept of subsidiarity is often misunderstood. I hope our guests will reply to this issue as to where matters seem to be going wrong, in that, people see directives being transposed into law but they do not see the law being implemented, as Mr. Collins said, at a lower level. They see the transposition of directives from Europe as being very exclusive. This relates to my point on the need for us to have advance warning of what is involved in directives. There is a good deal of merit in a committee such as this, namely, the Joint Committee on European Scrutiny and the Joint Committee on European Affairs, getting together and having adequate time to discuss what is contained in the various directives.

Chairman

Before I return to the representatives, I wish to add a few questions to the mix. Mr. McDowell mentioned the time requirement and the huge problems faced by Members of the Oireachtas. This is a serious and relevant point and not a problem that can be easily solved. I am curious to hear his view as to whether this requires a fundamental change to our political system to allow Members to be more responsive and equipped from a time point of view and from a political and focused point of view to deal with and concentrate on meaningful scrutiny.

The Sub-Committee on Ireland's Future in the European Union, before which both representatives appeared more than a year ago, examined different mechanisms to provide for bolstering scrutiny at a national level. One of the issues we examined and that we will examine in greater detail in the coming weeks is that of a scrutiny reserve system. I am curious to hear representatives' views as to how that might operate in the context of our political system, and given that we have a system that is generally dominated by majority Governments whether that type of system is practical in the Irish context.

Like Senator Alex White, I am interested in the concept of subsidiarity as a political rather than a legal concept. I attended a meeting of my party's political grouping, the EPP, on Monday in Brussels. Like the other political groupings in the European Parliament, the EPP is seriously examining this concept and how we can maximise influence by going beyond subsidiarity; subsidiarity is the trigger, but there is much more to it than that. There is the question of how it can best be used and whether, realistically, it will happen at a national level or those kinds of political manoeuvres will happen through the wider political families in the European Parliament and the Commission.

Similar to Deputy Michael Kitt, I am interested in the role of the Seanad in EU scrutiny and whether the representatives envisage the Seanad adopting a new role in European scrutiny altogether, whether it would be in addition to that of the Joint Committee on European Scrutiny or whether it would be a function similar to that of the House of Lords, which is a very successful one. Mr. McDowell mentioned it in terms of having appeared before it when he was Minister for Justice, Equality and Law Reform.

There is a major opportunity in this context to influence the Oireachtas in terms of anticipating measures and the effect of them. That ties in with the media issue, which everybody has mentioned. There is scope for media attention and media interest in issues that might come before the Joint Committee on European Scrutiny, if Members were prepared, anticipated the potential impact of measures and had their homework done. For example, in the case of the habitats directive, if the Joint Committee on European Scrutiny had been in existence and had been doing its job, perhaps some of the controversy surrounding the turf cutting issue could have been anticipated and perhaps the Minister would not have quite so lightly agreed to the directive, lock, stock and barrel at European Council Meetings, at other meetings and at decision-making fora in Brussels. There is scope to influence in this respect.

In terms of the specific Lisbon treaty procedures, the eight week deadline seems to be very tight. From the perspective of the short experience of the Joint Committee on European Scrutiny, it is a very difficult deadline to meet and, realistically, would it allow for adequate scrutiny and provide an adequate opportunity to scrutinise measures coming from the European Commission in a comprehensive way.

Mr. Michael McDowell

I will deal with the Chairman's points first just to curry favour with the establishment. The eight weeks that is provided is a very short period. I am interested to hear whether Mr. Anthony Collins agrees with me on this, but I believe this underlines the fact that if the Oireachtas or a parliament in any country comes to an issue cold and has to work out if it is interested in the issue, what the issue is about, if it wants to take a stance on it or if it has an argument about it, and if all of that has to take place on an issue which comes unflagged to a parliament, the chance of it having the intellectual and political energy to confront it and get involved in it, whether the issue is about turf cutting or some other matter, is quite small.

Having listened to the discussion, I am more of the view that to engage properly with European affairs such consideration must not be simply a reactive phase in the legislative progress that the Lisbon treaty has in mind; a decent parliamentary involvement in Europe would involve a European affairs committee or a scrutiny committee, or both, calling in the Commission representatives in Dublin and finding out what they are working on and what is cooking up in Europe. It is all too late in many respects when governments have signed off on directives and when the diplomatic effort is gone. It is difficult at that point to suddenly begin to re-open issues on their merits, when one is told by tired office holders in Brussels that they have been discussing the issue for 12 years, that they have not heard of one until now and why is one raising an objection.

I will give the committee an example of this. The European arrest warrant, which was introduced in the immediate aftermath of the 11 September attacks, had been the subject of very extensive research by the European Commission and by the Justice and Home Affairs Secretariat of the European Commission. I was Attorney General at the time and I had never heard of it. I was astonished when this suddenly popped up in front of the then Minister, Deputy O'Donoghue, at a Council meeting one day - it was just produced from the bottom drawer. I made inquiries as to how long this had been cooking up because it has serious constitutional implications for Irish citizens being sent abroad in custody and the like. I discovered that the European Commission had engaged in an extensive process of consultation in various member states. When I queried who in Ireland was asked, I found out that nobody here had been asked. This process had been going on and was well developed, but in official Ireland, including even NGOs and universities, nobody had ever been consulted on the European arrest warrant process before it was produced at a Council of Ministers meeting. I think that underlines the need to be aware of what is happening and find out what the European academy of law in Trier is being granted-aided to work on. One will find out what is cooking in that way. If one finds that 20 professors in 20 European universities are all receiving money from the European Commission to research a new measure, one will have a clear view that something along those lines is coming down the tracks at us. We can then call in the Commission to a committee meeting and ask: "Would you mind explaining what a specific European process is all about? We want to form a view of it while you are still working on it."

There is a particularly pronounced tension in the Irish system - it has been talked about a lot in the media these days - about the dominance of the Parliament by the Executive. To put it in a five or ten-year context, one must remember that, as far as the Executive was concerned - and many aspects of the Executive were concerned - it did not want Oireachtas scrutiny of Council business. I remember, as an Opposition Deputy, when the Oireachtas Committee on Foreign Affairs was established. The Department of Foreign Affairs was not madly keen on that. It did not like the idea of an ad hoc committee where it would have to explain our diplomatic stance. When I was a Minister I contributed a chapter to a book, which was published recently, in which I said that it is convenient for the Executive not to have to look over its shoulder at Parliament. If one looked to the Executive to share information and say: “We are working on a cutaway bogs initiative. It may be controversial and we would like to have your views on it”, that is unlikely to happen. Your average Minister would say: “This is controversial, let’s get ahead with it in Brussels and hope that people at home won’t find out about it”. That is a more likely bureaucratic reaction on the part of the Executive, than saying: “Lets sound this off every Deputy who has a bog in his or her constituency, to see how it will go down”, when one knows what the answer will be.

There is a problem with the Executive dominating Parliament, and parliamentary scrutiny on European affairs is an inconvenience. It was not always regarded as a huge help to have the advance views of parliamentarians before a Minister went off. It was regarded as easier to operate within one's own framework. For that reason, a really good committee system would have its own eyes and ears open, and talk to the European political parties about what is happening in the European Parliament to find out what they are working on. If there is a movement in Europe to do something about air passengers' rights, it will bubble up in the parliament where committees will be meeting. The real thing is communication and knowledge.

The other thing is that there are interest groups in Europe. The farmers are well organised. They will know if 1 cent is going to be taken off some grant and they are in a position to mobilise against it. In some areas, NGOs are organised at European level. However, the one group of people who are not on the inner loop of information are Irish parliamentarians, which is a serious problem.

In respect of the Seanad, the Chairman's own party leader, Deputy Enda Kenny, told the Magill Summer School that he saw an enhanced role for the Seanad in European affairs. I believe that view is correct. My own experience is that Seanad Éireann is far less confrontational than Dáil Éireann and for that reason it is easier for the Members to sit down together and spend two hours looking at a directive, than it is in Dáil Éireann where one group's immediate aim is to get the other group out of office at the earliest possible moment. Therefore, I believe that the Members of a less adversarial Chamber are more likely to spend time on such matters - if they are encouraged to do so, and have the structures and resources - like the House of Lords does in Britain, rather than the much more confrontational House of Commons can do.

Mr. Anthony M. Collins

My experience is that everything concerning European law involves a considerable amount of work. I think there is no difference as regards the scrutiny of legislation or, indeed, being involved in legislative proposals. It is often turgid, complex and unrewarding. In addition, one has the difficulty that sometimes some of the most important changes occur, even though the heading does not give it away, as Senator Alex White pointed out. Just because something looks innocuous does not mean there is nothing in there. On the other hand, just because something looks politically noteworthy, there may be no real problem with it at all, other than having a political debate. To that extent, if one is going to take up this task seriously there will need to be a radical reworking of the working methods in the Oireachtas generally. I do not see any way out of it, frankly. It would also need a considerable use of resources. I take Senator Alex White's point that it is not just technical assistance that is required. Someone can say that 40 out of 50 proposals are innocuous, but a political judgment also has to be made. I am not too sure how that is to be built in. However, in light of the debate on the future of the Seanad, the suggestion that the Seanad should be more involved in this type of work is well worth investigating further for the very reason that has just been given by Mr. McDowell. He pointed out, quite correctly, that the type of work that is envisaged by scrutiny involves a level of cross-party involvement. One cannot do it in an adversarial way; it will just not work. The evidence of that is, to some extent, the manner in which the European Parliament itself works. Therefore, if one has a body like the Seanad, that is not as adversarial as Dáil Éireann, it is in a better position to discharge these functions. Because it is in the public view, it also has the effect that at least the public can see what is going on. One disadvantage of doing everything through committees is the likelihood that it will get lost. I am not an expert in media matters, but the point can be taken that if it is going to be lost then there is very little reward and, of course, there is not the same public involvement - or perceived public involvement, at least - in the decision-making process. I am afraid to say that the sub-committee's work goes beyond what would normally be regarded as the type of work that a technical committee would do. In fact, it involves looking seriously at how the Oireachtas is carrying on its business in this regard. I do not see any way out of that. It is because of the nature of the task and functions that the national Parliament is being asked to take on, that it must reflect and look closely at its working methods, at least in this regard. It does not mean that the national Parliament has to change its working methods as regards anything else. However, I think it has to look at these matters again and consider some fairly radical steps.

The Chairman made a very good point regarding the question of influence. One question that will arise from all this scrutiny by national parliaments is how often it is used. If it is not used very often it will fall into desuetude, notwithstanding the eight-week time limit that has been set down in the Lisbon treaty. One will have a situation, therefore, in which this arm will have to be used in some way. That does not mean one brings forward ridiculous points or objections but if it is not used by national parliaments, then very little will happen. That obviously involves the question of co-operation with other national parliaments.

What is important to bear in mind is that at the first leg, if I can put it that way, if a sufficient number of national parliaments are engaged, the Commission can be asked to defend its position. The Commission must then reflect on its position and at least give reasons it is adopting the legislation. That, in turn, puts pressure on the Commission and, in effect, causes engagement between the national parliaments and the Commission on how that will be dealt with. That is a level of influence before one goes anywhere near the European Court of Justice. My view, as expressed earlier, is that I am not sure the European Court of Justice will be the forum in which these things will be played out. An example of a question which may arise is as follows. If legislation on inland fisheries was proposed by the Commission and member states had a difficulty, the question would be what is the best place for this to be regulated in, which is not really a legal question. It is a question of fact and a political question which, ultimately, must be dealt with by politicians and not just sent to the lawyers to sort out.

The prestige and influence of national parliaments in the Community structure and their involvement in the legislative framework in the Community will be enhanced by engaging in these matters but at the same time, I do not see where we are going with any form of right of initiative at this stage. First, it is still the case that the Commission has the right of initiative and, second, it seems to me that taking on the tasks that have already been allocated will involve such an amount of effort and time that if one was to have a right of initiative as well, one would be looking at greater resources and more difficulties. One must bear in mind that currently, the Oireachtas has a major function to carry out in regard to those areas of law which are not governed by Europe. Legislation must be passed to deal with matters that are simply not regulated at European level or if they are, we have sufficient choice in exercising those powers and must make choices in our own legal order as to how we wish to proceed.

As regards the question on the European Parliament, it would seem one way to improve matters with the European Parliament might be more involvement by Members of the European Parliament in the work of the Seanad or the committees. There are some facilities for their involvement already but perhaps they might take this up because the one way to find out what is going on in the European Parliament is through the active engagement of its Members in what is being done here. If the national parliament has a function, and national parliaments generally have a function, in the legislative process, then the importance of MEPs to engage with their national parliaments will become more obvious. It is a two-way street.

On the question of the influence of lobbyists and so on, unfortunately, lobbyists are very strong in the European system because of the right of initiative and with so many different features being involved and the economic stakes at play. A considerable amount of lobbying goes on which often results in circumstances that are very unsatisfactory. Depending on one's point of view, the example often given is the cocoa directive. I am not sure what position Ireland took on that but the view is that very heavy arm twisting was used to get a definition of cocoa which satisfied the big industrial combines. The ones which produce large amounts of products or confectionary for the market got their way ultimately because they went around and did the work. That is a problem one will have in all democracies. It does not matter at which level that is happening. To some extent, it may be that the European level is more porous or more open to that. One wonders if it is, or if it is just a question that it is more open while it might be more covert in other states.

I also agree with the point that eight weeks is very tight but I am afraid one must work with what one has. It is true that all that is being asked at that stage is whether there is an issue arising concerning subsidiarity. Again, however, it raises the question of resources because to try to turn around this material in eight weeks is very tight.

I agree with what Mr. McDowell said in particular in regard to following legislative programmes. The Commission is required to send its legislative programmes to the Oireachtas but very close monitoring of this comes down to resources as well. What is actually going on in the European law academy, where money is being spent by the Commission on programmes for research and so forth, gives away much of the thinking in areas. It often discusses publicly matters which are not even on the legislative programme at conferences and seminars which clearly shows what is going on. However, if no one is monitoring what is happening, it all comes as a bit of a surprise at the end of the day. That is a particular point but otherwise, I would agree with what Mr. McDowell said and do not have anything to add in that regard.

Deputy John Perry

I apologise for arriving late and welcome Mr. McDowell and Mr. Collins. I refer to Eurojust and Europol. The Department of Justice, Equality and Law Reform has a distinctive role in dealing with and scrutinising all justice documentation. The 2009 Act, post-Lisbon, gives a major role to the national parliaments in dealing with Departments.

I refer to the level of resources in the Department of Justice, Equality and Law Reform. The Secretary General of that Department was here last week in regard to the new role, which will be defined in Europe, to deal with Eurojust and Europol and the scrutiny of justice documentation. In light of the role of the national parliaments in regard to subsidiarity and as a former Minister for Justice, Equality and Law Reform, does Mr. McDowell see a major responsibility there in terms of Eurojust and Europol? From attending COSAC meetings, I know how important both of those agencies are in Europe in terms of drug trafficking and cross-border crime. Given the new remit of national parliaments, how does he see them dealing with the issues of Europol, Eurojust and all the documentation under the justice portfolio? The 2009 Act gives the Oireachtas a very distinctive role in regard to documentation from the Department of Justice, Equality and Law Reform as opposed to the 14 other Departments.

I refer to the level of resources provided compared to other jurisdictions. We have an excellent team working for us in terms of backup, legal documentation and translation of very detailed documentation. Would Mr. McDowell see the timeframe of eight weeks as a difficulty for the Department?

Mr. Michael McDowell

The book to which I referred, and which was sent to me when I ceased being a Minister, is called National Parliaments in the European Union: The Constitutional Challenge for the Oireachtas and Other Member State Legislatures and it is edited by Dr. Gavin Barrett who asked me to do a chapter in it when I was Minister. The title of that chapter is, Democratic Control over Governmental Action in European Matters: the Example of Justice and Home Affairs. This chapter concerns the issue about which Deputy Perry spoke. The justice and home affairs area is hugely important.

Deputy John Perry

I must get the book.

Mr. Michael McDowell

I presume the sub-committee will get Deputy Perry the book. It is quite an interesting book in some respects, although it is pre-Lisbon treaty and it does not take into account all of the new things. However, many of the issues have been flagged in principle on the basis that the so-called constitutional treaty, as it then was called, was floating in the air and might or might not be adopted.

There are huge issues in respect of accountability. Eurojust and Europol are not European police forces, as the Deputy well knows, nor are they European judiciaries in their own way. Effectively, they are co-operative agencies.

Deputy John Perry

They are extremely powerful.

Mr. Michael McDowell

They are extremely powerful in their own way. Their agendas are very important and the fact they should succeed is hugely important.

We live in a slightly unreal world as regards Europe because between Ireland and England, co-operation on justice and home affairs was always done over the telephone in so far as it happened at all. If an Irish police chief wanted to find out from an English police chief, or if anyone at any level wanted to find out, what was going on in regard to an investigation, where somebody was or what people were up to, information was simply shared as a matter of course because of close cultural co-operation between the law enforcement agencies.

We must remember the whole process is different in Europe. Much of the judicial process - the Kate and Gerry McCann case showed this - is a kind of secretive one which is dominated by a magistracy which is not entitled to impart its information to third parties. There is quite a deal of control over the co-operation process. It is much more hidebound. A person carrying out a major investigation into a crime in Lisbon is not free to lift a telephone and send his file over to a person in Dublin and ask what he or she makes of it. He or she works on a totally different principle from our system.

One of the problems is that because there are only three or four countries with a common law tradition of whatever kind - ourselves, Malta, the UK and, to some extent, Cyprus, most of the European Union is speaking a different language in respect of many of these procedures and what can and cannot be done. To them, confidentiality is absolute whereas to us, it is more a pragmatism.

If the Secretary General, Mr. Aylward, was present, I would defer completely to what he would have to say on these matters. However, I believe that one of the problems is that even if one receives a significant volume of information, one will still encounter this problem of winnowing the wheat from the chaff, working out what one wants to concentrate on.

Deputy John Perry

That is important.

Mr. Michael McDowell

One could spend all day reading and perusing documents and find out that one had contributed nothing to the process at the end.

Deputy John Perry

On the point about getting the reasoned opinion within eight weeks, given the time that is taken in Mr. Aylward getting his opinion to the Joint Committee on Justice, Equality, Defence and Women's Right and then coming back to the Joint Committee on European Scrutiny, it is a long process to get any consensus with the liaison officer in Brussels. I refer to the difficulty, especially given the complexities of the justice documentation we receive, as Mr. McDowell stated, of the 80:20 principle of identifying what would be relevant to Ireland and seeing how it can be dealt with. That is where the new powers under justice and home affairs are vast.

Mr. Michael McDowell

For example, information for national parliaments is dealt with under Protocol 1 of the Lisbon treaty which states that the national parliaments shall have all the strategic documents from the Commission. Who will read these strategic documents - whose baby these are - is a good question. Article 2 states that all legislative proposals are to be given to national parliaments in advance, and then there is a definition of that.

There is also a provision for the agendas and minutes of Council meetings to be laid before national parliaments and the agenda is to be put before the Parliament as soon as it is put before the member states. The truth is the argument will be about the draft agenda and will go on for weeks while the agenda will come out two days in advance. There will be technical compliance but, in fact, the diplomats will have been pulling lumps out of each other for weeks over the draft agenda. There are some aspects of this which are a little impractical. What is to happen if one gets the agenda two days before a Council meeting? Is this committee suddenly to rush into session and start demanding people should appear before it? There are practical issues.

Deputy John Perry

What would Mr. McDowell see, from his role as a former Minister and in his role as a senior counsel, as an ideal situation to deal with the justice and home affairs documentation?

Mr. Michael McDowell

This raises two questions. The Joint Committee on Justice, Equality, Defence and Women's Rights - the sectoral committee - should be looking at it. One cannot have it all located in a European affairs committee just because it is coming from Europe. The sectoral skills and the spokespersons for each party must be located where the discussion is going on. I believe that such documentation should be sent primarily to the Joint Committee on Justice, Equality, Defence and Women's Rights.

Deputy John Perry

Are there enough resources, from Mr. McDowell's experiences in that committee, to deal with translating the legal documentation?

Mr. Michael McDowell

One could consume infinite resources. Perhaps the Chairman will agree with the following proposition. When people say we need fewer Deputies and fewer Members of the Parliament but we need them all to do far more complex tasks, I wonder who are the supermen and superwomen who will be able to do all of this.

Chairman

Does Mr. Collins wish to add anything?

Mr. Anthony M. Collins

I agree with what has been said. I have nothing to add.

Chairman

Mr. McDowell will be pleased to know that I have a copy of the book and I would be glad to share it with Deputy Perry. On that note, I thank the two witnesses. They are the first witnesses before this committee since it was formed. It is our first hearing in public session and we will have many more in the coming weeks. I thank them for setting us off with the right tone. It was simulating. I think all the members would agree it was a useful session. I thank them for taking time out of their busy schedules to be with us today and for initiating a debate that will continue over the coming weeks and which we hope will reach a satisfactory conclusion before the summer recess.

The joint committee went into private session at 6.26 p.m. and adjourned at 7 p.m. until 10 a.m. on Wednesday, 5 May 2010.