To whom do I direct the question? Maybe the bureaucrats. Subsection (3) allows the Minister to opt out of bringing an opinion to the committee due to lack of time. It seems a useful provision. If something comes up quickly the Government must always respond, although it may not be possible to bring a committee of the House together. There does not, however, seem to be any time limit on this. This subsection could be open to abuse if a Minister was not prepared to work with a committee. Does the Minister, or Senator McDowell as the proposer of the Bill, have any idea about time limits? This is an important provision but it is also important that it is not abused.
European Union (Scrutiny) Bill, 2001 changed from European Union Bill, 2001: Committee and Remaining Stages.
Section 1 agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."
This issue was discussed on Committee Stage when the Bill passed through the Dáil. If there is sufficient time for an explanation as to why there is not sufficient time, then there is sufficient time to do the job. Fine Gael proposed an amendment suggesting that an explanation be given as to why there was not enough time. Clearly, that is not practical.
I take some solace, however, in the phrase used by the Minister for Foreign Affairs today when he said that section 3 was intended to provide for exceptional circumstances. He was referring to confidentiality, but it is important that we emphasise that both the confidentiality and urgency opt-outs should only be used in exceptional circumstances. There is no specific time limit in the Bill and I am not sure whether one would be helpful.
Senator Hayes mentioned time limits. Clearly, exceptional circumstances can arise and it would be a breach of faith if the Government were to abuse this. There is no doubt that the committee would be very vocal in its criticism if that were to happen. There will still be a requirement that the Government explain exactly what happened, including the circumstances and time constraints which forced an action. I do not think this could be abused, certainly not easily. It would be very unwise for a Government to do so.
Question put and agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
I have another objection to the rule whereby the committee can meet in private for reasons of confidentiality. As I said in my contribution, there is no constitutional bar on a committee of the House meeting in private, although there is a bar on a plenary session of the Dáil or Seanad in private. Section 3 states:
Subsections (1) and (2) of section 2 shall not apply to a proposed measure which, in the opinion of the Minister, is confidential.
Has consideration been given to a joint decision of the Minister and the committee, which would give greater validity to the private session that would ultimately occur? I know this will be an exception to the rule, but if the decision was taken jointly by the Minister and the committee, would this safeguard the procedure? Once a private meeting occurs those who are against the European Union will use this as an opportunity to attack Members of the House and say this is an example of meeting behind closed doors without any legitimacy.
This is something about which I have been concerned. I would prefer a straightforward objective test rather than this subjective test. In other words, if something is confidential the requirement under the process should not necessarily apply, but obviously we will leave the test as to whether a matter is confidential exclusively to the opinion of the Minister. It does not have to be a justified opinion, it just has to be his or her opinion. This places a serious onus on the Minister to discharge that judgment in a reasonable fashion. Good faith is the key issue here.
Clearly if Ministers abuse this provision the section will not work. The section contains the possibility that one could abuse it because all one would have to do is say that in their opinion it is confidential and that is the end of the issue. There is no requirement to demonstrate that something is objectively confidential. It should be put on record that it is possible this section will prove to be inadequate and it comes down entirely to the good faith of Ministers. For the moment I am prepared to trust that good faith exists.
This is a thorny issue which has arisen because of the wide nature of the measure which is universal. The Government is committed to an open and transparent system of the Oireachtas and it would be a very foolish Government that would try to roll back the decisions we all made in recent years to be more open. Section 3(2) makes it clear that the Minister may make a report to either or both Houses of the Oireachtas or to a committee of either or both Houses in relation to the proposed measure as he or she deems appropriate in the circumstances.
The provision on confidentiality is necessary because of the wide remit of the Bill which covers literally everything. It embraces all three pillars, including proposals by member states under the second and third tiers. This could deal with issues such as the Justice and Home Affairs area, which it may not be a good idea to discuss or even, for example, the controversial issue of the Common Foreign and Security Policy. If, for example, there was a proposal to impose sanctions such as those imposed against the regime of the former Yugoslav President Milosevic, it might not be of benefit to discuss such matters at a very early stage.
The idea of dealing with confidential issues is a necessary inclusion but it is clearly something that should be used as an exception. There are precedents for this in other legislation, including in the Ombudsman and Freedom of Information legislation. There is an arrangement whereby we accept Ministers will not abuse such a position. They would be very foolish to do so.
There were discussions with Fine Gael on this matter in the other House. The issue is to provide for confidentiality in very exceptional circumstances where a matter arises the sensitivity of which is such that it could not be discussed in open session.
Is the Minister saying it is his opinion that were he to invoke this section there would be informal discussions between himself, if he were the sponsoring Minister, and either the chairperson, vice-chairperson or all the committee members?
Obviously we would have to see how this provision would work. If the Deputy is talking about targeting some activity from the point of view of sanctions, it would clearly destroy the entire purpose of sanctions if there was to be a wide and open discussion about them. I assume a Minister would brief the chairman. I believe the arrangement that works best in these cases is where Ministers deal as directly as they possibly can with the chair and the committee members. This is the only way the system can work. If one were to take the alternative route and include exclusions in the Bill, one would undermine the entire purpose of the legislation. The benefit of the Bill as drafted is that it is universal in its cover and there has not been an effort either by the promoting party or by Government in responding to it to include all the caveats and exclusions that are fairly typical.
The idea is to make it as open as possible but there is also a fairly obvious and practical requirement that one must protect those occasions, which in my view will be rare, where confidentiality arising from the circumstance will necessitate something other than a full and open discussion. It would have to be transparently obvious to the committee that this was not an abuse by the Government of the day. It would be a very foolish Government or Minister that would try to duck behind the confidentiality requirement. For example, in the Ombudsman's Act there is a provision whereby Ministers may not make certain information available but this has never been used. I argued in this House that it was likely never to be used and I would guarantee it will probably never be used. Nonetheless, given the nature and extraordinary breadth of issues covered it is necessary to include this provision.
It is not to give Ministers a bolthole in which to hide; it is to ensure the Oireachtas and the committee which represents the Oireachtas will have the widest possible operation. When on the very rare occasions confidentiality is called for, a Minister would make a report in good faith and the committee would ultimately have to make a judgment on the issue.
We should not cod ourselves. While I accept the Minister of State's good faith in the issue, there are Departments of State – the Department of Justice, Equality and Law Reform is the most obvious one – which regard almost ipso facto everything they do as confidential. Some colleagues in that Department have to be pushed and shoved into briefing anyone as to the nature of what they do. There will be a need for proactive action from Government in this regard. We do not want the Justice and Home Affairs pillar of the European Union closed down because the Department of Justice, Equality and Law Reform regards these matters as confidential.
I endorse Senator Hayes's point on the facility whereby committees can meet in private. I have been on the finance committee for the past five years and it is not unusual for relatively confidential information to be confided to members of the committee in private session. No doubt Government Ministers could make use of that provision.
I agree with the Minister of State. There will be many occasions when one will not want to disclose one's negotiating position in advance of the Council of Ministers meeting. For that reason it is important to include this provision.
I am pleased the Minister of State has put on record that where this particular power is invoked he would think it normal practice for a Minister to enter into discussions with the chairperson or all members of the committee because that may well arise.
On the issue of measures, as the Minister of State knows in regard to the establishment of EU directives, under the freedom of information any citizen of the European Union can find out exactly the discussions that take place between the Commission, a representative group or the Government. However, that is not the case in this jurisdiction. Under the Freedom of Information Act, I am not entitled to know exactly the position of one Department as against another before the Bill is actually published. Is it the Minister of State's view that the term "measures" will ensure all the opinions that may come from one, two or three Departments about a particular directive or measure are obtainable under the Freedom of Information Act?
My view is well known on issues such as freedom of information. Senator Brian Hayes knows my views and I have also taken the view that the best way to make sure secrets are not leaked is to have absolutely no secrets at all. This issue was discussed in this House when we debated the Freedom of Information Act. I was sitting on the other side of the House and arguing about these issues. Opinions, materials and drafts went backwards and forwards between Departments at the very early advanced stages. The argument was made – one which certainly has validity – that the prior opinions of Departments that went into the formative stage are not an issue in any jurisdiction or subject to freedom of information because what becomes a matter of freedom of information is the stage when the legislation is consolidated and comes forward.
I have always taken the view privately that it would be very illuminating to know what discussions went on in the background in the formulation stage. I would not be prepared to give a commitment in that respect here, but I have private views that might not be a million miles from those of Senator Brian Hayes.
Question put and agreed to.
Sections 4 to 6, inclusive, agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
I thank Senators for their support this afternoon in adopting the Bill. I also thank the Labour Party for putting forward this proposition. My view on the support and development of the committee system in the Houses of the Oireachtas is a matter of historical record and I have not changed those views since I came into office.
A huge amount of extremely good work can be done bringing forward legislation and in dealing with matters at committee level. I compliment the Labour Party on its initiative. The Government was right to pick up on this initiative and to move it forward at this time.
Many of the provisions in the Bill have already been in operation on an informal basis since 1 July. The additional obligations arising from the Bill will be addressed and implemented by all Departments as quickly as possible, and there is an anxiety that that be the case. The House can be assured of good will in that matter and of the bona fides of the Government, myself and the Minister for Foreign Affairs. We have already appeared before the committee on a number of occasions. The committee is under way and is doing extremely good work.
Senator Brian Hayes made a valid point in his final contribution that democracy can only thrive if it is open and people see it working. People cannot see the extremely good work being done by the committee if the media do not have the resources to cover it. It is not a fault of the reporting staff of these Houses, but a fault of those who decide to assign pages in the national papers and time on our national broadcasting station. It is an astonishing fact that the committee has been doing extremely good work which is being largely ignored.
The adoption of this Bill demonstrates strongly the Government's ongoing commitment to increasing the level of public and parliamentary debate on EU matters. Since the last referendum on the Nice treaty, the Government has endeavoured to engage in the process of public dialogue on the EU.
This new legislation will serve to allay fears expressed by some at the National Forum on Europe that the EU legislative process is not sufficiently transparent or accountable. That fear exists, but in this State, as a result of this legislation, people can be aware that the process of making the whole venture more transparent is now well under way.
The adoption of the Bill will result in continual dialogue and exchanges of opinion between Members of the Oireachtas and the Government on a wide range of legislation that directly impacts on all our lives. The new Act will ensure that the Oireachtas is informed about proposed legislation and will offer Members the opportunity to express their views and continue to shape Government policy while legislation is being negotiated.
Senator Ulick Burke made a very interesting observation. Both Senator Brian Hayes and I smiled as he was doing so because we are aware of the contribution that he made in terms of farmers and their difficulties arising from EU legislation. We found out that the difficulties arose in Ireland and were not the fault of Brussels. The type of scrutiny being introduced in this Bill will make our Departments and Ministers much more aware of any pitfalls that might arise. This is very positive legislation.
The system of oral briefings by Ministers, while not provided for in the legislation, is an integral part of the scrutiny system and will further promote dialogue between Members of the Oireachtas and the Government, facilitating the exchange of ideas, concerns and opinions. The last briefing that took place before the last general affairs Council meeting was an astonishing four and a half hour tour de force by Members of the Oireachtas who had put considerable time into preparation. It was a tragedy that it did not get more publicity in our media.
Likewise, the new half-yearly and annual ministerial reporting obligations, notwithstanding Senator Daly's concerns, will make an important contribution to the ongoing dialogue between the Oireachtas and the Government. Those reports and the annual report by the Committee on European Affairs to the Oireachtas will give the Members of both Houses an opportunity to assess the operation of the system. The system of parliamentary scrutiny, if implemented successfully, will lead to a new era of transparency and accountability, demonstrating to the public that the Oireachtas has a very direct input into EU legislation.
I thank all those who made a contribution. The rules prohibit me from addressing each one of the contributions, one will be glad to hear, but they reflected a number of concerns that we all have going forward. The one point that can and should be made is that this is a start, not a final stage. We now have the opportunity to build on extremely good foundations. They are well laid in this legislation to bring the whole process of European lawmaking very much closer to the people and under much more direct scrutiny of the lawmakers of this country.
I thank the Minister of State, Deputy Roche, and the Minister for Foreign Affairs for bringing this timely Bill to the House. It was well overdue. I thank the Labour Party for initiating it last year. It is clear today that there is a consensus in the House and I hope it will have an impact on the final Nice referendum on Saturday.
I concur with what has been said by the previous two speakers. This, in its own way, is quite an historic day in the Oireachtas because we are enacting legislation that will change dramatically the way we do our business vis-à-vis European regulations, Commission proposals, etc. It will put an enormous new onus on each Member of the Oireachtas and I hope we are up to the challenge of responding. In terms of those who doubt the commitment of national politicians to do legislative work, there is a challenge for us as Members to show we are serious about our business.
Each Oireachtas committee will become a very important vehicle in the legislative process in coming years arising from the Labour Party Bill. I congratulate the Labour Party on bringing it forward and the Government for accepting it. It will certainly make a huge difference to the way in which we conduct politics.
I concur with those who said there is a challenge for the media in terms of the way in which they report our business. I hope one of the proposals of the outgoing committee on Dáil reform in respect of a designated Oireachtas television station will be acted upon in the near future because valuable work is being done in this House of which nobody is aware. The more we can transmit that work to the public, the better. I look forward to progress in that regard.
Again, I congratulate the Labour Party on this fine legislation and I hope that, during the term of this Seanad, we will also see other proposals from the Opposition side enacted by the Government.
I appreciate the thanks that have been proffered to the Labour Party on this Bill. Let me reciprocate by thanking other colleagues for their support. The legislation does not in itself bring about accountability or transparency but it gives us the mechanism whereby it can happen. It requires a commitment from the Government and by every Member of both Houses of the Oireachtas to ensure it becomes a reality.
I hope that in passing this Bill we are also sending out the signal that we are listening. A concern expressed at the time of the first Nice treaty referendum was that the democratic deficit was not being addressed. This legislation is a serious effort on the part of the Houses of the Oireachtas to address it and the message should go out to the public that we are listening to the concerns of people and doing what we can to address them.
Question put and agreed to.