We have a quorum and no apologies. I am delighted to welcome the Minister for Foreign Affairs, Deputy Micheál Martin. I appreciate that he has taken the time to come here to assist us in our work. I now invite him to give his opening address and we shall take questions afterwards.
Houses of the Oireachtas and EU Legislation: Discussion with Minister for Foreign Affairs
I thank the members of the sub-committee for the invitation to make a presentation to it. I, along with my ministerial colleagues, will reflect on the various topics raised at these meetings on the role of the Oireachtas in European affairs and legislation since the Lisbon treaty has been ratified and its new institutions and mechanisms established.
The broad issue is not new. Almost 40 years ago the Oireachtas debated this issue as it prepared for our accession to what were then the European Communities. There is, however, a new context for this debate. The Lisbon treaty has provided national parliaments with significant new powers in the EU framework to further enhance the democratic legitimacy of the Union. Consistent with this, the 28th amendment to the Constitution, which permitted ratification of the treaty, also specified the areas in which the approval of both Houses is required if Ireland is to take certain discretionary measures under the treaty.
In this new context, with an enhanced role for the Oireachtas under the EU treaties and in the Constitution, the sub-committee's review is timely. When I appeared before the sub-committee on Ireland's future in Europe in November 2008, I said that remaining at the heart of Europe was vital to the country's future well-being and economic prosperity. That sub-committee made a real contribution to our efforts to find the best way forward for Ireland in Europe. I acknowledge its role in the positive outcome of the second Lisbon treaty referendum. I hope this sub-committee can make an equally valid contribution to Ireland's engagement with Europe and I am ready to assist it in this endeavour.
I thank the Chairman and members of the joint sub-committee for the commitment which they have already demonstrated to their work. It has already had discussions with an impressive list of speakers with others to follow. I hope that my contribution today can add to the sum of the sub-committee's impressive knowledge and understanding.
My remarks will focus on modules 2 and 5 in the sub-committee's terms of reference which largely concern the recommendations of the sub-committee on Ireland's future in the European Union and the issue of transposition of EU legislation into domestic law. I shall, however, be happy to deal with other items in the terms of reference if members so wish.
In the interests of brevity, I do not propose to comment individually on all the recommendations from the sub-committee on Ireland's future in the European Union report in this opening statement. I would naturally be happy to comment on any particular recommendation which members might like to raise in discussion. I am here to offer the views of the Government and I hope to avoid any confusion of role. However, in seeking to help the sub-committee I cannot avoid commenting on issues which are in the domain of the Oireachtas rather than the Executive.
The sub-committee on Ireland's future in the European Union recommended an Oireachtas scrutiny reserve system. Our current scrutiny arrangements date back to July 2002 and are based on the obligations outlined in the European Scrutiny Act 2002. This requires the relevant Minister to provide the Oireachtas with a timely statement outlining the content, purpose and likely implications for Ireland of proposed EU measures. The Minister must also have regard to any recommendations from the Oireachtas on such measures.
The 2002 Act represented a substantial advance in the Oireachtas scrutiny of EU business. The Act is underpinned by detailed administrative arrangements, which are co-ordinated by the Department of Foreign Affairs and which provide the Oireachtas with detailed information notes in 20 working days of formal publication of an EU measure.
In addition, each Minister provides the Oireachtas with reports at least twice each year on measures, proposed measures and other EU developments relevant to the Minister's responsibilities. Ministers also attend relevant Oireachtas committees, on request, to offer briefings in advance of Council meetings to set out the Government's approach to the Council agenda and to hear the views of Oireachtas Members. Committees generally have the power to call Ministers for this type of pre-Council discussion.
I regularly attend the Joint Committee on European Affairs in advance of the Foreign Affairs Council and the General Affairs Council. When I am unable to attend, the Minister of State, Deputy Dick Roche, will normally attend in my place. I find these pre-Council discussions helpful, particularly in giving me a sense of the committee's priorities and concerns. I value the guidance which is offered by committee members.
The current scrutiny arrangements work reasonably well when they are properly utilised but there is scope to avail more fully of these arrangements, including the power to call Ministers for pre-Council discussions. This gives the Oireachtas, through its committee system, an opportunity for active input into the EU legislative process.
The sub-committee on Ireland's future in the European Union report referred to the scrutiny reserve system which operates in the UK Parliament, giving it a strong oversight role. I am not convinced a similar system would serve Ireland's interests in the EU. In such a scrutiny system, the general rule would be that the Government could not agree to a proposal at European Council while the proposal is still subject to parliamentary scrutiny. This could present serious issues about the Government's constitutional role in the conduct of Ireland's international relations. It would also pose pragmatic difficulties. More importantly, it would seriously constrain the capacity of an Irish Minister to negotiate the best outcome for Ireland at Council meetings. My experience at Council meetings strongly indicates there is enormous advantage, particularly for a smaller member state, in having a negotiating position which can respond quickly and flexibly to the direction of the Council's deliberations.
I briefly touched on this matter during my appearance before the sub-committee on Ireland's future in the European Union in 2008. At the time I said we were seen by our European colleagues as highly effective networkers and influencers. Around a table of 27 member states there may often be a need for flexibility without compromising our national priorities. The capacity of an Irish Minister to negotiate the most favourable result for Ireland often depends on the Minister's ability to put an offer on the Council table and to accept a balanced outcome which meets our key negotiating objectives. If, instead, an Irish Minister could only accept a proposal subject to parliamentary scrutiny, Ireland's negotiating position would be seriously constrained and our bargaining power would naturally tend to be weakened.
There are other pragmatic difficulties with applying the UK style of parliamentary scrutiny here. It is a resource intensive system, from a staffing and administrative perspective. It would place a heavy burden on the Oireachtas to take a timely and definitive view on each EU proposal. The introduction of a UK-style scrutiny reserve system to the Irish administrative and constitutional context would be a complex and delicate exercise for the Government and for the Oireachtas. It would significantly increase committee workloads and would require an overhaul of committee procedures. Staffing costs also, both for the Oireachtas and Departments, could be a significant added charge on the Exchequer. The constitutional issues would also have to be carefully considered.
Nonetheless, alternative means can be used by which the Oireachtas might enhance its scrutiny of EU business. A substantial body of work is carried out by the Joint Committee on European Scrutiny. I greatly appreciate the work done by this committee under its Chairman, Deputy John Perry. In the past two years, the committee has received close to 1,000 EU proposals and subjected many of them to further scrutiny. In selected cases, these proposals have been referred to the relevant sectoral committees for detailed scrutiny. This work is a necessary element of any effective system of Oireachtas scrutiny.
How does one add value to this work by ensuring it makes an effective input into our political consideration of EU business? One suggestion has been to focus the committee's examination on the most important proposed EU measures, say 50 or so proposals each year. This approach is followed by several national Parliaments, including those in Germany and the UK.
A key point would be to encourage more regular political contact and information exchange between the Government and the Oireachtas about the major proposals under negotiation at Council meetings in Brussels and on the EU agenda overall. For example, the current arrangements could be enhanced by a more regular process of pre and post-Council consultation of the Oireachtas. This suggestion is also relevant to the recommendation in the SCIFE report on prior consultation regarding the Commission's annual policy strategy, APS, and on its legislative work programme.
As members will know, the new Commission recently issued its work programme for 2010 which includes an indicative list of possible strategic and priority initiatives during the life-span of the current Commission up to 2014. Some members may consider that it is too late to influence the Commission's work after the APS is published. The suggestion may be that an Oireachtas committee could outline its views on Commission priorities before the publication of the APS.
I would see value in Oireachtas committees inviting relevant Commissioners or Commission officials to appear before them on matters relating to their portfolio. In terms of briefings by a representative of the Commission, it has previously indicated its willingness to send Commissioners to national Parliaments to present its annual policy strategy. Were such arrangements to be implemented, this could enhance the interaction between national parliaments and EU institutions in a manner consistent with the Lisbon Treaty.
The recommendations in the joint committee's recent report seem sensible to the effect that the JCEA should maintain responsibility for consideration of the Commission's annual policy strategy and the JCES should consider the Commission's annual legislative work programme. I was also interested in a suggestion which was raised by an earlier witness before this committee. The suggestion relates to the creation of a rapporteur system similar to that in the European Parliament. This would involve a member of an Oireachtas committee being appointed to examine a particular proposal. The rapporteur would report to the committee which could make recommendations to which the Government would have to have regard. The report could also form the basis for a parliamentary debate if the committee so decided. It seems to me that this suggestion has the potential to enhance Oireachtas engagement with the European Union.
I would add a final point on the question of scrutiny reserve. The sub-committee might consider the benefits which arise where Oireachtas committees engage directly with MEPs, including European Parliament rapporteurs, with relevant European Commissioners and their senior officials.
To conclude on this issue of scrutiny, I should like to return to the reference I made a earlier as regards the requirements set out in the EU Scrutiny Act to Ministers reporting on EU matters to the Oireachtas. Under the Act, the Oireachtas receives six-monthly reports from every Minister, and in addition, my Department on behalf of the Government makes an annual report on developments in the EU. There seems to me to be a level of duplication in these reports which serves no useful purpose. In addition to these reports specifically on the EU, each Department is required to publish an annual report which incorporates substantial material on relevant developments at EU level. I would suggest that this aspect of the scrutiny Act could be reviewed with the aim of producing a more streamlined system of reporting which meets the needs of the Oireachtas and lightens the administrative burden.
I now turn to the issues covered in module 5 regarding transposition of EU law. This issue is of fundamental importance to the Oireachtas in its role as the national legislature. There appears to be a good case now for a fresh look at the systems of transposition and oversight which have developed over many decades. The recommendation in this area, as I understand it, is that measures should be introduced to enhance Oireachtas oversight of secondary legislation which is used to give effect in our domestic law to EU legislation. In particular, it was recommended that the text of the statutory instruments, or at least the heads of these instruments, should be circulated to all Oireachtas members. There is also a suggestion by SCIFE and in the recent JCEA and JCES report that the text of statutory instruments transposing EU legislation should be circulated, not to all Oireachtas members but simultaneously to all relevant committees.
I should begin by saying that transposition of EU legislation is overseen by an interdepartmental co-ordinating committee on EU affairs, which is chaired by my colleague, the Minister of State, Deputy Dick Roche. The focus of this committee is on the timely transposition of EU legislation and it has been very successful in helping Ireland to meet its EU obligations, particularly on the so-called Internal Market scoreboard. I could see scope for a useful exchange of information about the ICCEUA work programme with the two European affairs committees.
I am aware that there is a particular concern about so-called "goldplating". This is the idea that Irish authorities, whether through secondary legislation or through their interpretation or enforcement of the law, may exceed the EU's requirements. This concern was also raised during the recent referendum campaigns but, despite considerable discussion, I have seen little concrete evidence to support the claim. There may be value in relevant committees examining specific complaints of this nature to establish whether particular problems exist and, if so, what their source is. It might be worth someone's while to do a piece of work on that because I heard a good deal about this, pre-Lisbon, during the campaigns and afterwards and I believe flesh needs to be put on such verbal anecdotes. However, we have not had any hard evidence on that issue.
It seems to me that the underlying concern here relates to the burden which EU rules can place on enterprises and individuals. The European Union committed itself in the Lisbon strategy to reducing the administrative burden of its regulations. Here in Ireland, the Government has instituted a system of regulatory impact assessment as part of a broader policy on better regulation which aims to reduce the administrative burden on business in particular.
I understand that Departments are required to conduct a RIA on all primary legislation involving changes to the regulatory framework. In principle, this also applies to secondary legislation transposing significant EU directives. The SCIFE report recommended that regulatory impact assessments be forwarded to Oireachtas committees for consideration.
I see merit in the recommendation that RIAs be prepared on the transposition of all significant EU measures. These RIAs should focus on options within the scope of the legislation, for example how a particular scheme might be funded or administered. The RIAs could be forwarded to the relevant Oireachtas committees when draft legislation, including statutory instruments, is being circulated.
At EU level, the European Commission has instituted a wide-ranging impact assessment system which includes a cost-benefit analysis and addresses all significant economic, social and environmental impacts of possible new initiatives. These impact assessments are available on-line once the Commission has adopted the relevant proposal. In Ireland, if an EU proposal is significant, an RIA should be carried out on its transposition. An RIA carried out correctly with proper consultation would ensure clear transparency and accountability and would set out the best method of transposition, be it through primary or secondary legislation. This should lead to the timely and effective transposition of directives.
In conclusion, I should like to refer to module 1 of the sub-committees's terms of reference, which deals with the interim arrangements that give effect in the Oireachtas to the powers of national parliaments under the Lisbon treaty and the European Union Act 2009. In regard to the current interim arrangements, recently extended to the: end of this year, these arrangements appear to take due account of the new powers under the Lisbon treaty. The arrangements will allow the Oireachtas to exercise these new powers, and particularly in regard to subsidiarity, when the occasion warrants. It is important that these arrangements are effective and, to that end, my Department has asked that information notes which Departments supply to the Oireachtas on EU proposals should now include a reference to any subsidiarity issue. It may take time for these arrangements to be fully tested but I see no reason at this stage to doubt that the current arrangements could work effectively on a permanent basis.
My presentation has largely focused on the role of the Executive and Legislature. However, we are all aware that our efforts come to nought if our most important stakeholder, the public, is not aware of, and engaged by, what we are doing. The revised programme for Government contains a commitment to further enhance Ireland's place at the heart of Europe by encouraging the deepening of engagement by civil society at a European level. The Department is centrally involved in this by such initiatives as the Communicating Europe Initiative which recently provided grants to local and national initiatives promoting awareness of the EU this year. There are important communication lessons which we should draw from the Lisbon treaty referendum campaigns. My Department commissioned a survey after the first referendum which played a vital role in identifying the concerns of the Irish people. The Department also commissioned a survey shortly after the second referendum and the data from this has been carefully analysed by Professor Richard Sinnott and his colleagues at UCD's Geary Institute.
Professor Sinnott will publish his report shortly and while I do not want to pre-empt his publication, I understand he has made a number of significant findings which could shape our thinking on the best means of communicating these important issues to the Irish people. For example, he has found that official information about the treaty, particularly the Referendum Commission material and the Government's White Paper, were significant in giving people a greater sense of understanding of the Treaty. The Government worked hard to win guarantees which would address the concerns of the Irish people as identified in research after the first referendum. Those guarantees were a central theme of our communications in the second referendum campaign. Professor Sinnott's research indicates that there is a clear link between understanding those guarantees and a "Yes" vote.
It is encouraging to have this evidence that communication on Europe can be effective, but I feel strongly that we cannot confine our efforts to referendum campaigns. We must develop a consistent strategy for communicating Europe, drawing on our experience of what works. There is clearly an important role for Members of the Oireachtas in helping to improve public understanding of the European Union and of Ireland's role in the EU. I greatly appreciate the commitment which members of both committees have shown to this task over the years. I look forward to the sub-committee's recommendations in this area. Many of the issues we are discussing could, if properly addressed, make the Houses more effective in handing its EU business and help to realise the vision of the national parliaments which is embodied in the Lisbon Treaty.
I hope these remarks have helped to clarify my approach to the issues the committee is considering. I will be happy to respond to committee members' comments and questions and I look forward to a fruitful discussion.
Thank you, Minister, for a comprehensive outline of your position. We will take lead questions from each political group.
I welcome the Minister here today. The European Union gets blamed for many things that happen or do not happen in the country. I have been at meetings about road development and turf cutting in which the EU has taken all the blame. Many of the witnesses who have come before this committee have spoken about early intervention in respect of directives. That is a very good idea, but it is a question of how we proceed. We should be involved at the drafting stage. When issues like turf cutting or road developments are being dealt with in Europe, we are not in there on time.
Former Ministers have spoken to us about getting information very late. Ministers usually attend our committees before they go to European meetings. The idea of Ministers coming back to the Dáil and committees after the discussion has taken place to tell us what happened is another point I wanted to raise.
The Minister has covered everything very well and I wish him well in his work as Minister for Foreign Affairs.
I welcome the Minister and I agree with many of the remarks he made. There is much shared thinking between himself and members of the committee on these issues. I agree very much with the pre-Council and post-Council consultation and getting in there early in respect of the annual policy strategy, and inviting Commissioners and other major figures over here. Along with the rapporteur idea, these are part of what we have been discussing for some time.
I would like to query his reservations about the scrutiny reserve in module 2. Many of us feel that we are not getting a crack of the whip in respect of what goes on at the Council meetings. The Minister is very good at attending this committee before going to those meetings and explaining what is on the agenda, while giving us a brief description of what transpired afterwards. No other Minister attends the committee from many of the other sectoral areas, so we do not know what happens in their portfolios when they meet with their Council colleagues. When the Minister attends the committee there is very little flexibility in terms of doing anything because he is going to Europe and most decisions will already have been made. While we are entitled to make some recommendations, the Minister is not obliged to pay attention to us. I am sure he pays attention, but there is no obligation on him to do so.
We have rights but they are unlikely to have any force in the area of implementation. The Minister said that there might be a constitutional issue involved, but I would have thought that the opposite applies. We have a responsibility under the Constitution to hold the Executive to account. Unless we do that, the Minister will solely make decisions as he sees fit. We need something more robust than the current situation. Scrutiny reserve seems to be the half-way house between the mandate system, based on the Danish model and the German model to some extent. It provides a degree of flexibility because there is no absolute mandate imposed.
The area of scrutiny should be divided up to a greater extent among the different committees and it should be the responsibility of each committee to engage with its Minister. Where there are issues that are critical to the Oireachtas in general, there should be scope for the Minister to go into Council meetings and explain that there were issues to be resolved here before he could make a final decision. That is the situation in the UK. This would focus our minds, even though most decisions would have been taken in advance.
Is the Deputy referring to the UK scrutiny committee?
I am referring to the scrutiny reserve.
Therefore, the committee might not be able to accept a certain position.
The SCIFE report opted against the mandate system and in favour of the reserve position. There are merits in that position because it allows the Oireachtas joint committees to have oversight and accountability for what happens at the Council of Ministers. It does not have this at the moment. We have to find a mechanism to fulfil the constitutional obligations and fulfil article 12 of the Lisbon treaty. We have to respond, but we are not doing this at the moment. We have to find a mechanism to do that. Perhaps it might be best if the work was shared out among each sectoral committee and each Minister would have to attend his or her respective committee on a regular basis.
I welcome the Minister's suggestion regarding a regulatory impact assessment mechanism in order to determine what are the important issues in terms of transposition, what should go to primary legislation or to secondary legislation, and so on. However, what has happened in the past is a cause for caution. The various committees have discussed such issues as habitats, turf cutting, waste management, the criminalisation of Irish fishermen, the manner in which the eels directive was handled, which seemed to be merely gold plating from the Irish point of view, and so on. All these issues were dealt with by statutory instrument without reference to committee. While a regulatory impact assessment may well have taken place in such instances, that was not communicated to anybody prior to the ministerial decision to introduce a particular statutory instrument implementing decisions of the European Union.
This is the fundamental problem, that there are effectively no lines of communication. The manner of transposition means there is no way for any committee or any Oireachtas Member to know what is particularly impacting. Everything is transposed by statutory instrument, with each Minister making the decision without reference to anybody in the Oireachtas and with no opportunity for consultation. We do not treat domestic law in this fashion but it is deemed acceptable to transpose European law into domestic law by means of statutory instrument. Transposition by statutory instrument does not afford the parliamentary scrutiny that comes with the introduction of primary law. There must be transparent mechanisms in place if the current anomaly of the almost total use of statutory instruments is retained.
Has the Minister given any consideration to the role of the Seanad? One of the proposals in report of the Sub-Committee on Ireland's Future in the European Union is that an additional European Union panel be added to the Seanad and a particular role given to that House in dealing with the transposition of legislation from Europe or at least having a significant scrutiny role in that regard. On the issue of subsidiarity, the proper implementation of the protocol, including the new entitlements of the Oireachtas in this regard, will require significant resources. We must streamline the system where decisions being made by committee are communicated to the Oireachtas and then to other member states. It takes resources to put all that in place.
I thank the Minister for his comments on the Joint Committee on European Scrutiny. I compliment the staff of the committee who, as regular attendees know, do a very good job. I agree with the Minister's point about being more selective; of the 500 or so items of legislation coming in every year, many have no relevance whatever to Ireland including, for example, some relating specifically to eastern Europe. The proposal of having two lists is a good one and would allows us to determine the amount of time that should be allocated to each proposal. The 80-20 principle would be effective in this regard, that is, focusing on the 20% of legislation that is of most relevance to Ireland. The Minister's comment on the 50 proposals also represents an excellent idea.
I agree that the existing legislation, namely, the 2002 Act, as amended by the 2009 Act, is adequate. The problem is that we are still not operating that legislation effectively. For example, there should be more debate in the Chamber and grater interaction with Members of the Dáil and Seanad and with party Whips. I understand a pilot process was in place in respect of subsidiarity. It is vital that there is sufficient discussion of important items of legislation that have a great impact on the citizens of Ireland. The Minister's comments regarding streamlining are important. I spoke recently to the Secretary General of the Department of Justice, Equality and Law Reform who pointed out that the amount of documentation coming into that Department alone is immense.
In regard to subsidiarity, there is an eight-week timeframe when the report is sent back out to sectoral committees. With the best will in the world, it is difficult to bring in witnesses, examine the issues and draw up a report within that timeframe. There must be more mainstreaming of that process. The Joint Committee on European Affairs does great work in dealing with Green Papers, as well as the transposition of European law. Meanwhile, the remit of the Joint Committee on European Scrutiny is pre-legislative inquiry. In other words, these issues are being dealt with in two shops.
As Deputy Costello pointed out, transposition by statutory instrument means the issues are never debated in any committee or in the House and it can be a cause of great concern when they are merely signed off by the Minister. If a regulatory impact assessment is done, it is important that it be circulated if not to every Member then at least to every relevant committee. There is a democratic deficit under the current system of transposition by statutory instrument. Deputy Kitt observed that many people in local authorities were animated by the water directive. The role of local authorities in this regard should be examined, with a view to placing them at the cutting edge of the transposition of directives. We should enhance the flow of information so that it incorporates local authorities.
I agree that the 2009 Act, with certain amendments and with a better utilisation and greater mainstreaming of resources, provides the basis of an effective system. There is also scope for a greater role for MEPs who, although they are entitled to attend committee meetings, rarely do so. That represents an opportunity lost. There should be greater encouragement - if not perhaps an obligation - for them to attend committee meetings during the down week in Brussels. Similarly, we have not used interactive technology to access live broadcasts from the European Parliament to have greater engagement with Brussels. That also would be important. As for the Minister's remarks on streamlining the system of reporting, that is very important.
The Minister will be aware that I have raised the issue of an information kiosk several times. The Joint Committee on European Scrutiny recently had discussions with a delegation from the European office in Molesworth Street about installing an information kiosk within this Parliament. It would not cost a great deal of money to provide information on Europe in Leinster House, which attracts 50,000 visitors. Moreover, the Houses of the Oireachtas Commission was amenable to the recommendation that a kiosk be installed in Leinster House to dispense information on Europe. People do not fully understand-----
Is this going to happen?
With encouragement from the Minister, they would be happy to-----
I have been completely supportive of that.
I refer to the number of second level and third level students who visit Leinster House. However, in the context of the Lisbon treaty and the democratic deficit, a huge opportunity is being missed in this regard. In addition, while the Oireachtas Library and Research Service is highly effective and produces massive amounts of documentation, it could be used better on European issues.
Although the Minister indicated that Ministers can appear before the relevant Oireachtas committees before Council meetings, as Deputy Costello noted this does not happen because they do not feel so obliged. Moreover, they are not duty-bound to act on the recommendations either. As for the points regarding the transposition of directives and the major difficulties experienced in the past, better streamlining of the process could be achieved with a one-stop shop from a Green Paper on European affairs through scrutiny to the statutory instrument. This is everyone's responsibility at present, as Green Papers and statutory instruments are under the remit of European affairs. If one considers the impact of having proper evaluation of legislation, a one-stop shop would be far easier to manage in that a paper trail would be generated.
I refer to the possibility of more effective debate in the Dáil and the Seanad and greater engagement here in the Oireachtas. The Minister could give more credence to the real effectiveness of the 2009 European Union Act, as one might discuss the creation of something new without effectively using what already exists. I suggest the effective use and empowerment of the existing tools, albeit amended slightly. In additional, the role of the rapporteur also will be a highly important factor.
On the number of committees in the Houses, I must be honest by noting that unfortunately, regardless of how well-intentioned one might be, a report sent by the Joint Committee on European Scrutiny to a sectoral committee will not be returned to the former in the expected timeframe. Justice and home affairs issues are completely separate. I believe that with the adoption of a two-list system in which one could be more selective by picking the 50 reports of greatest relevance to the Government and circulating the associated regulatory impact assessments, the 80:20 principle could be achieved. The Oireachtas cannot possibly check 500 legislative items as it lacks the resources. Were one to think that giving them out to sectoral committees and awaiting a report back was workable, one would be dreaming as this simply does not happen.
I thank Deputy Perry. I invite the Minister to respond after which I will take supplemental questions.
First, I thank members for their presentations. Deputies Kitt, Costello and Perry all raised the issue of gold-plating again. Deputy Kitt mentioned a point about early intervention at drafting stage and I am all for that. While this can be facilitated, it will take greater capacity in the Oireachtas, will take greater engagement and will require people to be more alert. As I noted in my presentation, in essence the Commission's legislative programme or agenda is mapped out as far as 2014. If one really seeks engagement, one can consider key areas that are coming down the tracks and can start working on them now. This can be achieved by dint of effort and engagement.
On the issue of gold-plating, it is time to back up the rhetoric in this regard. While I posed a question in my opening remarks, I now will put it more bluntly. Is interpretation the issue or is it simply that people plainly dislike the content of the policy that has emanated from the law? In other words, it is not so much how a directive is interpreted but that it simply is that people do not like the directive. I refer to what tends to happens domestically in the political arena. The Deputy is correct to state that often, there is very little room for manoeuvre in respect of changing the primary legislation. In such circumstances, a statutory instrument may come into force about which people may not have been aware and suddenly politicians and public representatives at the coalface are obliged to explain an issue to a surprised public who are opposed to the measure in question. The fallback domestic political position is to state that the directive has been over-interpreted but this may not have been the case at all and it may not have been gold-plated but may simply be interpreting what is the law. Members must face up to this issue because this point was made to me by different political parties before the referendum. It is time to consider whether this actually is the case and whether gold-plating takes place. It should be possible to take five or six examples and perform case studies on them to ascertain how the laws were transposed and whether the interpretation was over the top or exceeded requirements. At present, I am doubtful about this because I have not seen the evidence in this regard.
In addition, I was Minister for Enterprise, Trade and Employment when the REACH directive, pertaining to the compilation of chemicals and so on, was introduced. I can recall that at the time, my Department did its best to alert the public and the commercial and industrial worlds in particular to the impact of REACH, which was quite significant. However, this was extremely difficult even through IBEC and other organisations. Even though we raised the issue and alerted people to it, the amount of feedback, representation or points we received from industry and businesses generally was poor.
I can give the Minister one example.
I want to finish the point. Sometimes, there tends to be a national switch-off in respect of European legislation until it arrives at the door and is being implemented. We must work out how to switch people on to the process much earlier.
The Minister has a two years to do so.
Yes, but the same pattern emerges in respect of climate change issues. I can recall the climate change debates regarding emissions trading and so on. However, within the last two months everyone suddenly came in the door protesting that this or that measure was unacceptable and would damage this or that sector. In the meantime, however the process had been going on, as the Deputy noted, for two years.
Such measures should be debated in the Chamber.
Yes but I also think-----
Members should allow the Minister to respond.
My conclusion is we must work out a mechanism to switch people on earlier in respect of legislative proposals. In this regard, the Oireachtas, the Executive and wider society has a role. As I noted at the outset, I am in a listening mode but I also wish to share my thoughts on the issue. I believe that more concrete work on the gold-plating issue is required. I accept the points made an early intervention, engagement and so on.
On the ministerial issue, it is within the remit of committees to summon or request a Minister to attend. In this regard, the foreign affairs portfolio might be somewhat easier in some respects, because some of the Council meetings tend to be related to issues, as opposed to legislation. In respect of a meeting on our stance on conclusions regarding the Middle East, Iran or Sri Lanka, members' views are very helpful to a Minister going to a Council meeting. Such a meeting can fortify a Minister and mark a few cards in respect of the Minister's position on issues. I find such meetings to be helpful. I can then tell my colleagues on the Council of the existence of a significant domestic parliamentary position on a matter and that I am obliged to revert to my Parliament and so on. As I stated prior to the Lisbon treaty referendum, every Minister should appear before his or her respective committee not only in advance of Council meetings, but afterwards to report on how the meeting went.
I have laid out my stall as to how the scrutiny reserve issue will work in practice. We are different to the United Kingdom, which has historically had a different approach to the EU. Not only is it larger than us, it has a greater degree of euroscepticism and is resistant to any attempt by the EU to legislate on many issues. That we have gone along with the European agenda more enthusiastically out of self-interest has coloured the approach by the Parliament and the Executive to European legislation.
The scrutiny reserve issue is concerned with whether we want to put the Executive in a straitjacket in terms of how it negotiates on various matters at Council level. Do we want to remove all room for manoeuvre when putting proposals to amend? To a certain extent, one could take oneself out of the game if anything agreed at Council needed to be subject to parliamentary scrutiny afterwards. While this might be the conservative, safe way to play in terms of EU proposals, it may not be the optimal way for a small country like Ireland. I would be reluctant to go down that route, although I am open to further discussion. While we have reflected on the matter for some time, I have issues with it from a political point of view. There are also significant resource issues. Deputy Perry put his finger on it, in that we cannot skirt around the matter. We must consider the political capacity to deal with everything involved.
Deputy Costello referred to the role of the Seanad. I will not get into the related debate on its reform or abolition, but if we are reforming the Seanad to have more relevance, teeth and impact and in light of how we have performed in terms of European legislative scrutiny in the past two decades, can we be honest about whether there is the political capacity to absorb all of this legislative work, given the other pressures on Deputies and Senators owing to the normal obligations of politics? Is there a case to be made for an EU panel elected by the people, the function of which would be the real scrutiny of EU legislation? We should consider the matter and the Seanad has a role in this regard.
Scrutiny is a substantial part of our legislative work and has not been adequately addressed, since so much is occurring in Parliament as it is. Clearly, there is room for a niche, targeted and sustained political and legislative effort to manage the issue over time and to represent the people from the early stages of the European legislative processes to the point of transposition and enactment in Ireland. We must assess this question, given that there is a case to be made. I am disposed to the idea of making the examination of EU legislation a key element of a radical reform of the Seanad, as the country needs to do this significant work and a new political capacity to do it in an effective way would be created. I have answered Deputy Costello's question on the sectoral committees.
The constitutional issues concerning mandates or reserves must be examined. They are not black and white, but there are clear constitutional issues pertaining to the Executive and international relations in light of Article 29.
Many members have been supportive of the rapporteur system, an idea advanced by some of the people who appeared before the committee. We could usefully adopt it.
We will work with the committee in terms of transparency in the transposition of directives. If the member state has no discretion, some directives can be transposed by statutory instrument. If the directive leaves significant choices on matters of principle and policy open to the member state, primary legislation is required. The legal differentiator between the statutory instrument and primary legislation routes in terms of transposing EU law is clear.
We are supportive of the idea that we should try to work to avoid surprises at the other end. This means that the Houses of the Oireachtas must become involved earlier in the adoption of regulations or directives.
Deputy Perry suggested we should use more of what we have. The Oireachtas has significant fora as it is.
They can be comprehensive, but they are not being utilised.
No. Members should reflect on this issue. I am supportive of the EU office route. Regarding constant engagement with MEPs, there could be more video conferencing.
Could the Minister send a letter stating his support? The European Commission Office appeared before my committee last week.
I could send a letter. Is the Commission supportive?
The Commission and the Parliament.
It is a no-brainer.
The delegation stated it was a matter of moving a kiosk to Leinster House, one that would work in parallel with Molesworth Street. The remit is considerable, but when students visited Leinster House yesterday, there was no discussion in Dáil Éireann on Europe. They do not go to Molesworth Street, so it is a significant loss.
I fully agree. The footfall is here.
We will take a number of supplemental questions. Senators Donohoe and Alex White indicated, so the former will go first.
I have had an opportunity to read the Minister's contribution. I apologise for missing it, but I was in the Seanad. The Minister's point on the greater use of regulatory impact assessments, RIAs, is a good idea. I want to double check something in the Minister's contribution, namely, that he will be assuming the automatic publication of RIAs on proposed legislation and statutory instruments. I did not hear this matter mentioned specifically.
They will be published. I agree that we should circulate the statutory instruments and RIAs to Members. It should be doable electronically.
A good parallel is what most Departments do. If significant legislation is being published, the RIA and the legislation appear on the Department's website on the same day. The RIA is often a more effective means of understanding what the Bill is about than the explanatory memorandum accompanying the Bill. I thank the Minister for his clarification.
Regarding the scrutiny reserve system, I was much taken by the Minister's query as to whether we can honestly say whether there is the political capacity to do the work in question. It was a fair question. We must also admit that we cannot have our cake and eat it. If the institutions do not have the capacity to allow people to exert a role, particularly those not in the Government, it is difficult for us to observe and complain that the work is not being done. Apart from the UK, many European countries operate versions of the scrutiny reserve system that appear to be able to negotiate and participate effectively at European level. The Minister outlined one version. I can understand why he would do so. It is a particular variant of it and a particularly strong version of it.
Other options exist, such as where a European panel, the Government and the Oireachtas select particular items of legislation and policy, highlight these to the Minister, implement a version of the scrutiny reserve system and, as in the case of the UK, if at European Council level the Minister feels it reduces his ability to negotiate and deliver the national interest, he can decide to override it. He must revert to the relevant committee and explain why he has done so. The scrutiny reserve system creates a loop that needs to be closed. If interested, Members of the Oireachtas and the committee have a greater role to play in understanding the Government's work representing the country abroad. I understand the Minister's observations, which are much what I would expect to hear from the Government. However, other European countries use versions of the system successfully. If they can use it, why can we not?
I agree with Senator Donohoe. The Minister referred to the importance of encouraging and deepening engagement by civil society on European issues. That has not always been the case in public discourse. There is a lack of an early switch-on, which we all experienced. The discussion arises when the ship has sailed. I understand the dilemma in which people find themselves. This is intimately linked with the question of scrutiny reserve or some similar measure. The best way to engage people is on the merits of a particular measure as it is emerging, not trying to persuade people afterwards that it was a good idea. The Minister referred to communication and I do not deprecate this idea but it refers to a fait accompli. It is important and is part of what is required but the real engagement will come if people are afforded an opportunity to participate in or at least to observe a debate on the merits of a particular measure. Inevitably, that must come at the beginning rather than the end. That is linked to my disappointment with the Minister’s formulation. He suggests there is a danger Irish Ministers will be undermined or there will be a burden of returning to the Parliament.
I am not saying that.
Can I draw the attention of the Minister to what he said?
The Minister said it.
The Minister stated: "If, instead, an Irish Minister could only accept a proposal subject to parliamentary scrutiny, Ireland's negotiating position would be seriously constrained and our bargaining power would naturally tend to be weakened".
It is disappointing the Minister formulated it in that way. I agree with the overall context, because the Minister agrees there is a problem, but if we are to turn our backs on a genuine system of scrutiny, we will not be able to engage the public.
Senator Alex White is suggesting we should engage the public at the endgame.
Precisely the opposite.
Senator White refers to communication but under the scrutiny reserve system everyone else is on board at that stage.
That is not what I was saying, unless the Minister is leading us down the wrong road.
Senator White should conclude his point.
I do not want to get into nitpicking and we could more usefully have a debate on this topic. At the point at which the Minister is dealing with the UK style scrutiny reserve system, in support of his rejection he says it would operate to undermine the position of the Minister in Europe. This is on the same page the Minister rejects the UK's scrutiny reserve system because he would be looking over his back.
I will make a few points before the Minister concludes. I thank him for his patience. The terminology used by the Minister is that there is potential that the scrutiny reserve system would effectively operate as a straitjacket for the Government. That is not the objective. It is not surprising a Government Minister would not be in favour of the scrutiny reserve system. On the other hand, every witness before the committee to date, including former Ministers, has supported it and feels it would lend legitimacy to Government negotiations at European level and would lend greater legitimacy to decisions taken at Government level and represented at Council level.
Perhaps it needs to be turned on its head. It would be worth considering the positive aspects of the scrutiny reserve system. The Minister referred to the United Kingdom as an example. This is fair except that the UK has a particular position on European integration and is renowned for having a very effective scrutiny system. That should not be treated lightly. Other members of the European Union have a pro-European outlook and a more restrictive system in place, namely, the mandate system. No one appearing before the committee has proposed this system. There are other ways of considering this matter.
The issue of MEPs is important. The European Parliament is central to decision-making at European level, to which Deputy Perry alluded. What is the position of the Government in respect of reforming the way we structure our business in these Houses? We have heard much talk about Dáil and Seanad reform but there is a logical argument to suggest we should separate the plenary sitting weeks and the committee weeks. If we had a committee week coinciding with the week MEPs are in the country, we could have meaningful engagement between the MEPs, the Joint Committee on European Scrutiny, the Joint Committee on European Affairs and sectoral committees. MEPs who are members of the agriculture committee at the European Parliament could attend the Joint Committee on Agriculture, Fisheries and Food in the Oireachtas. That would be beneficial. Committees sit virtually every week in these Houses so the attendance and active participation by MEPs is not an option at the moment. That is unfortunate and we need to revise how we do business. I am interested in hearing if the Minister agrees with this.
The recommendation on the publication of regulatory impact assessments was a concrete recommendation of the Joint Sub-Committee on Ireland's Future in the European Union, which reported almost a year and a half ago. I am pleased to see the Minister agrees with the recommendation but it is time to see it implemented. I hope we can get a commitment from the Minister that some of the recommendations from the Joint Sub-Committee on Ireland's Future in the European Union will be implemented, not just put on the long finger. This committee will report in the next couple of months and we do not want to see the recommendations of this committee put on the long finger. That is a concern that cropped up at previous hearings and I wanted to bring it to the attention of the Minister. I thank the Minister for his patience.
I have attended this meeting in a spirit of constructive engagement with the committee and I regret the Chairman's last few comments. It introduced a certain tone suggesting there is a reluctance to engage on this side. I am very constructively engaged in this. We have been waiting for Parliament to revert to us on this point. The ball is in the court of the Parliament. If the Executive intervened and dictated the pace, the Legislature would quickly and correctly complain to the Executive. There is an engagement because we must work together but I will not dictate to the Oireachtas how it shapes the role of the Parliament following the ratification of the Lisbon treaty. I have said that a few times in the House.
We dealt with the matter before with regard to the separation of committees from plenary sessions. I have no difficulty with that. Deputy Costello will recall that some years back we had a plenary week and a committee week; the public perception was that the committee week was a week off. Equally, with regard to the impact assessments, we are advocating transparency and circulation. People must read them if they are circulated.
With regard to MEPs, there are two different Parliaments carrying obligations and duties of attendance, etc. We have not quite developed structures to facilitate more regular briefings from our Irish team in the European Parliament, irrespective of party affiliation. As part of our post-Lisbon treaty commitments, we are looking to more regular engagement with the MEPs on a range of issues. For example, we would like a discussion with them on the European External Action Service because the Parliament has a clear view on how that should develop. It would make sense that there should be an opportunity to discuss the Irish position with our MEPs.
The point on Dáil and Seanad reform relates to the point about committees. I am open to the issue and supportive of it. We tried certain measures before. I have laid out my stall on the scrutiny reserve. It is not made in the context of a current Minister, and what we are putting in place is the architecture that will govern Parliament's engagement with Europe for a decade at least; that could involve two or three governments. The position should be accepted in that context rather than that of the current office holder. It is an important point and I mentioned to my European Union colleagues when we set up the external action service, as they were quite worried about the role of the high representative as it related to foreign ministers, that we are all birds of passage.
With regard to the external action service, we must create a service that works over 20 or 25 years. It is an exciting opportunity for people to shape how structures can be created into the future. Everybody should reflect on what I am saying about scrutiny reserve.
I have one question. The Minister said it would be of great help in terms of addressing the democratic deficit to have even one day a month for European issues to be raised.
It would be a great benefit. There could be scrutiny of European affairs and debate lasting two or three hours once a month on issues of concern.
There should be an obligation for the Minister to attend if possible, although perhaps it should not be mandatory. We can do much by mainstreaming what we have and making more effective use of the resources. There could be participation in Dáil and Seanad Éireann in the short term; we do not have to reinvent the wheel. Is there a willingness to put a timeframe on more engagement?
The Government has adopted the idea of every Minister going before a committee. In the consideration of issues, particularly scrutiny reserve, it might be no harm to look at other Departments. Some Departments have a far higher volume of EU legislation than others.
That is true.
It might be no harm to ask those in the Department of Agriculture, Fisheries and Food, for example, or the Department of Justice, Equality and Law Reform how they would see the impact of a UK-style scrutiny reserve. There are issues surrounding the transposition of directives, etc. That is a little easier for me.
We do not have a structured time for European matters. The only time is when the Taoiseach returns from a Council meeting. We do not have any time before the Taoiseach attends those meetings or to speak to Ministers before they attend meetings. We do not have a clue what the Taoiseach will discuss when he attends those meetings.
The Deputy is better informed than that.
The issue came to light in the context of what we are discussing currently in the Dáil with regard to the Bill concerning Greece. Aspects of that matter have been ongoing for more than a month. It has never been debated in any context in the Dáil.
Is the Minister in favour of having the Taoiseach attend the Parliament for the same period of approximately 80 minutes before the summit meetings, which normally take place on a quarterly basis? It is not a significant amount of time, although when there is a crisis the meetings take place more often.
We had a very difficult scenario regarding a directive for the eel industry. Ireland came up with its gold-plated response, which was that no eels should be harvested in Ireland for 100 years. It transpires that eels are not like salmon and do not return to the same river. They come from the Sargasso Sea across the Atlantic to all the countries. It was an obvious issue for a joint position between all the Atlantic countries but Ireland insisted on one.
Was there scientific evidence?
The Minister would not attend the committee to talk to us. This is a recent event.
I do not want to discuss the merits or demerits of the eel.
I am simply outlining one case.
It is a fair point but was that a domestic issue or an interpretation of the directive?
It was domestic.
Therefore we cannot apportion blame.
No other country took this gold-plated approach. Many of the other countries have a far greater number of eels.
I am not an expert on eels but I recall the salmon issue and the opposition to that. We acted correctly on that issue.
We took a gold-plated approach to the eel issue, which was not in accordance with any of the other countries and the Minister did not attend the committee to discuss the issue.
Is the Deputy referring to this committee?
He did not attend the committee dealing with European affairs.
Which Minister is that?
It is the current Minister.
I will follow that up.
It was the Minister for Communications, Energy and Natural Resources, Deputy Eamon Ryan. He refused to attend the committee despite being given a number of invitations. We do not have the power to ensure that Ministers come before the committee.
The Minister will need to leave soon.
The Chairman's final point regarded the recommendations of the final report of the sub-committee dealing with Ireland's future in the EU. Will the Government be giving an enhanced role to the scrutiny committee? There is an internal arrangement in place currently.
That is what this process is about.
I thank the Minister and I hope he will take all the remarks in the constructive spirit in which they were intended. Members will be hopeful that the Government will be receptive to the final recommendations of the committee. I thank the Minister for his time and engagement in what has been a very useful process. I thank the officials also.
The joint committee went into private session at 12.10 p.m. and adjourned at 12.15 p.m. until 10 a.m. on Wednesday, 26 May 2010.