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Seanad Éireann debate -
Thursday, 1 May 2008

Vol. 189 No. 10

Twenty-eighth Amendment of the Constitution Bill 2008: Committee Stage.

Before Committee Stage commences I wish to deal with a procedural matter relating to Bills to amend the Constitution. The substance of the debate on Committee Stage relates to the wording of the proposed constitutional amendment contained in the Schedule to the Bill. The sections of the Bill are merely technical. Therefore, in accordance with long-standing practice, the sections are postponed until consideration of the Schedule has been completed.

I move: "That in accordance with precedent, consideration of sections 1 and 2 of the Bill be postponed until the Schedule shall have been disposed of."

Is that agreed? Agreed.

AN SCEIDEAL.

SCHEDULE.

Tairgim leasú a 1:

I gCuid 1, leathanach 7, idir línte 7 agus 8, an méid seo a leanas a chur isteach:

"11° Amhail ar theacht i bhfeidhm agus ó theacht i bhfeidhm an Chonartha dá dtagraítear i bhfo-alt 10°, is feidhm de chuid Thithe an Oireachtais é na feidhmeanna a thugtar do Pharlaimintí Náisiúnta leis an gConradh sin a chomhall thar ceann an Stáit, de réir Theideal II ("Forálacha maidir leis na Prionsabail Dhaonlathacha") den Chonradh ar an Aontas Eorpach arna chur isteach le hAirteagal 1.12 den Chonradh dá dtagraítear bhfo-alt 10°.",

agus

I gCuid 2, leathanach 9, idir línte 20 agus 21, an méid seo a leanas a chur isteach:

"11° Upon and from the entry into force of the Treaty referred to in subsection 100, it shall be a function of the Houses of the Oireachtas to carry out for the State the functions conferred on National Parliaments by that Treaty, in accordance with Title II ("Provisions on Democratic Principles") of the Treaty on the European Union inserted by Article 1.12 of the Treaty referred to in subsection 10°.".

I move amendment No. 1:

In Part 1, page 6, between lines 7 and 8 to insert the following:

"11° Amhail ar theacht i bhfeidhm agus ó theacht i bhfeidhm an Chonartha dá dtagraítear i bhfo-alt 10°, is feidhm de chuid Thithe an Oireachtais é na feidhmeanna a thugtar do Pharlaimintí Náisiúnta leis an gConradh sin a chomhall thar ceann an Stáit, de réir Theideal II ("Forálacha maidir leis na Prionsabail Dhaonlathacha") den Chonradh ar an Aontas Eorpach arna chur isteach le hAirteagal 1.12 den Chonradh dá dtagraítear bhfo-alt 10°.",

and

In Part 2, page 8, between lines 20 and 21, to insert the following:

"11° Upon and from the entry into force of the Treaty referred to in subsection 100, it shall be a function of the Houses of the Oireachtas to carry out for the State the functions conferred on National Parliaments by that Treaty, in accordance with Title II ("Provisions on Democratic Principles") of the Treaty on the European Union inserted by Article 1.12 of the Treaty referred to in subsection 10°.".

The question of the democratic deficit in the European Union and across the institutions and the need to foster democratisation in the Union is one of the issues that was addressed in the discussions in respect of the EU constitution and when the matter was revisited in the context of the Lisbon reform treaty. There are a number of provisions in the Lisbon treaty which genuinely address that question and what has come to be called the democratic deficit. There are the question of the citizens' initiative, more powers being given to the European Parliament, the question of co-decision and the manner in which the Commission is to be made up.

One of the most important if not the most important aspect of what is being proposed in the reform treaty is the enhancement of powers of national parliaments and the new role they are to be afforded in the new dispensation. Already the majority of legislation that passes through these Houses comes from European Union directives. European legislation comes to these Houses and feeds its way into the law of the land.

In the context of the proposed change it will be vital for us to review the procedures in the Houses of the Oireachtas for debate on and consideration of European directives before they are implemented and transposed into law. It is an area in which we are somewhat wanting in the sense that it might be said to some extent of the changes proposed that we should be careful about what we wish for because we are seeking a real level of scrutiny for European legislation in the Houses. However, if and when we get that we need to be prepared to ensure that our mechanisms and procedures really do engage in the sort of scrutiny that is contemplated and essential in respect of EU laws being implemented in this jurisdiction. That may be an issue for another day.

The purpose of this amendment is to specify in the Constitution what we mean by endorsing this additional role for national Parliament. We should point to the centrality of the Oireachtas as our national Parliament. That is the thinking behind my amendment. This matter was discussed in the other House. I hope the Minister of State will consider that the role of the Oireachtas, our national Parliament, is sufficiently important to be specified separately in the constitutional amendment. I commend the amendment to the House and I look forward to the Minister of State's reply.

I thank Senator Alex White. He is correct. Deputy Costello and I had a lengthy discussion on this matter in the other House and we also exchanged correspondence. I understand the objective the Senator wishes to achieve. However, I believe when he hears the counterarguments he will probably take the same course of action as Deputy Costello did. The treaty clearly strengthens the role of national parliaments, which is one of the major benefits in the treaty. Jaime Gama, the President of the Portuguese Parliament, said the real winners in this treaty are the national parliaments, with which I agree. The new powers will promote democratic responsibility and will place a major challenge, particularly on the Houses of the Oireachtas as to how we do our business. One of the Fine Gael speakers earlier said that there is a distressing tendency in this country — as is the case in other countries — for people to blame Europe for anything we do not want to sell to the people and then to claim credit domestically for everything beneficial that Europe gives us. This will produce a much more realistic debate.

Having examined the proposed amendment, I believe that to single out the provisions relating to national parliaments could give rise to uncertainty about the status of other elements in the treaty not specifically referred to in the proposed amendment to the Constitution. I understand the Senator's point that the centrality of Parliament should be recognised. I consulted with the Attorney General particularly after receiving correspondence from Deputy Costello. It is not legally necessary to insert the change as proposed. The view is that it is much more appropriate that the mechanics and methods of how the Houses of the Oireachtas can fully engage and implement the new powers are formulated in the context of the review of the scrutiny legislation.

The Senator will recall this because his party proposed it. After the second referendum on the Nice treaty, scrutiny legislation was enacted as a result of which we moved the Oireachtas committees to a different status. It is better to insert the detail that is necessary there than to insert it into the Constitution. In the other House and in other debates I have made the point that we have appended considerable verbiage to the Constitution, which is a very fine document. People have commented how complex international treaties are. We should not make the Constitution any more complex than is necessary. For those reasons I believe the objectives the Senator and his party wish to achieve would be better achieved — as was done after the second referendum on the Nice treaty — in the context of the Oireachtas scrutiny legislation. I regret I cannot accept the amendment.

I welcome that Senator Alex white raised the matter because it reinforces the powers the national Parliament will have in this regard. As the Minister of State has said the matter should be addressed in the scrutiny legislation. It is great to have that extra power and it gives us all more responsibility. Whenever legislation is proposed in Europe we will be conscious of the scrutiny that it will receive not alone in the Joint Committee on European Scrutiny but also in this House. I welcome that we can have debates in this House to analyse and scrutinise such proposals. It is no harm to highlight the matter as it gives the public reassurance regarding the power we have as a result of this treaty.

I understand what the Minister of State has said. I am inclined towards the view he takes in respect of sparse language in the Constitution and that we should not overburden it with detail. We should not leave aside the responsibility these Houses will have. We have had scrutiny legislation before and people are alive to the need to ensure proper scrutiny. However, we need to put that into terms. We need to discuss that matter perhaps after the people decide on the treaty.

My experience in another life was of dealing with the practical implications of legislation, much if not most of which in the employment field comes from Europe. There is a debate on whether there is a significant dividend for workers from being members of the European Union. There have been a number of directives in the past ten years covering fixed-term working, equality and organisation of working time, all of which found their find way into Irish law and have a profound effect on the daily lives of citizens, employees and workers. They are not of a theoretical nature. They are real and afford people rights which they can then have vindicated in Irish tribunals and courts and ultimately, if it is necessary to raise a particular issue, they can go back to the European Court of Justice. These are practical effects and advantages that people obtain as a result of our membership of the Community.

I do not want to stray too far from the proposal. I understand what the Minister of State is saying and I thank him for being prepared to engage with Deputy Costello on this and other issues. Further to what he has said, I do not propose to press the amendment.

I thank the Senator. I share his enthusiasm for the new role to be given to parliaments. There was a wonderful debate on this at the Joint Committee on European Scrutiny earlier this week. I am probably the most enthusiastic Member of the House about this because I believe there is something revolutionary about this treaty. It will drag the legislative process into national parliaments, which is wonderful.

I think the Senator and I agree that the wording to be put in the Constitution regarding this Bill is already very complex. I already said in a debate elsewhere that when this referendum is over, we should examine how we deal with our Constitution. Every time there is a referendum amendment we put in many words produced by lawyers, for the best and most appropriate reasons, that detract from the legibility of what was and still is one of the finest constitutions in the world. I am grateful to Senator Alex White.

Tarraingíodh siar an leasú faoi chead.

Amendment, by leave, withdrawn.

Tairgim leasú a 2:

I gCuid 1, leathanach 7, idir línte 22 agus 23, an méid seo a leanas a chur isteach:

"Chuige sin, déanfaidh an Stát, go háirithe, beartas neamhchomhaltais a chothabháil maidir le comhghuaillíochtaí míleata.",

agus

I gCuid 2, leathanach 9, idir línte 33 agus 34, an méid seo a leanas a chur isteach:

"To this end the State shall, in particular, maintain a policy of non-membership of military alliances.".

I move amendment No. 2:

In Part 1, page 6, between lines 22 and 23, to insert the following:

"Chuige sin, déanfaidh an Stát, go háirithe, beartas neamhchomhaltais a chothabháil maidir le comhghuaillíochtaí míleata.",

and

In Part 2, page 8, between lines 33 and 34, to insert the following:

"To this end the State shall, in particular, maintain a policy of non-membership of military alliances.".

I propose this amendment and hope the Minister of State and other Senators will recognise it as an effort to contribute to the debate, shape the Bill and address some of the deficiencies of the Lisbon treaty. This highlights the nonsense spoken by the Minister of State in his suggestion that people are out to destroy Europe. No one seeks to destroy Europe and I am glad to have the opportunity to speak to this amendment. I hope the same approach as was taken in the Dáil is not taken, with the Government thinking I am going on and on and then guillotining the debate. I hope the Minister of State lives up to his promise that he will facilitate full debate on this issue. I do not intend to keep Members long.

The amendment relates to non-membership of military alliances and seeks to address the failure of Government negotiators to ensure Irish neutrality is protected in this treaty. This is a crucial issue for Irish people and, incidentally, many references are made in the treaty to North Atlantic Treaty Organisation, NATO, a military alliance.

Sinn Féin has a clear vision of the kind of EU it wishes to see develop. We want an EU that promotes conflict resolution, peace-building and global stability. We want an EU that protects neutrality and opposes militarisation and the arms trade. In the past Sinn Féin tabled legislation in the Oireachtas to enshrine neutrality in the 1937 Constitution. I believe this is something that would receive the support of the people of this State who are neither comfortable nor happy with the increased militarisation of Europe and the world and the use of EU troops in operations dictated by the EU rather than the United Nations. Had our previous proposal to enshrine neutrality explicitly in the Constitution been accepted, we would not have to be here discussing this amendment today.

Proponents of the Lisbon treaty will argue that the triple lock, whereby military interventions abroad require a UN mandate, the consent of the Government and the consent of the Houses of the Oireachtas, defends Irish neutrality. However, the triple lock has been weakened already by legislation in 2007 that opened the way for military interventions abroad based on UN authorisation rather than a formal UN mandate. Authorisation would not necessarily require a UN resolution, rather a weaker form of UN assent, such as compatibility with the UN Charter.

The Lisbon treaty also dispenses with the requirement for a UN mandate for military interventions, thus neither Irish nor EU deployments abroad will automatically require a specific UN resolution for military operations. This is made more worrying when one considers the expansion of the scope of EU military actions contained in the Lisbon treaty. In Article 28 B(1) of the treaty the Petersberg Tasks, which list the types of military interventions deemed possible, are expanded to include joint disarmament operations, military advice and assistance tasks and post-conflict stabilisation. The treaty also contains new obligations in Articles 28 A(7)and 188 R, whereby member states must assist others that are victims of armed aggression, the mutual defence clause, or a terrorist attack, the mutual solidarity clause.

Combined, these changes weaken the threshold for UN sanctions for military interventions abroad while significantly expanding the scope for such action. When taken with the sections on common defence, NATO and military expenditure they signal the most substantial erosion of neutrality and control over foreign policy to date. It also moves us further down the road to a common defence while significantly advancing the capabilities and competencies of the EU to act independently on the world stage. When the European Commissioner Romano Prodi said in 2001, "Are we all clear that we want to build something that can aspire to be a world power?" it was this vision that he was alluding to.

This is why I propose this amendment which seeks ensure the State maintains a policy of non-membership of military alliances. I ask that it be accepted as I feel a majority of the people would want this.

I thank Senator Doherty and do not doubt his sincerity on this issue. This is much the same proposal that was addressed by Deputy Ó Snodaigh in the Dáil.

As was explained already, the reform treaty does not affect Ireland's tradition of military neutrality and several safeguards for our position are in the treaty. Unanimity continues to be the rule in security and defence matters and we preserve a veto on any proposal or crisis management mission with which we disagree. The treaty recognises that the policy of European Union "shall not prejudice the specific character of the security and defence policy of certain member states". The Senator referred to negotiators and this phrase was inserted specifically at the request of Irish negotiators and it is a phraseology that appears in several recent treaties.

The Senator correctly points out that there are a significant number of references to NATO in the treaty. However, the references to NATO arise from the fact that the majority of member states see their defence arrangements as best served through membership of that organisation. A small number of countries, including Ireland, Austria and the Nordic countries, do not share this view. I am discounting Denmark because it is a member of NATO and has a unique position regarding the European Union's common foreign and security and policy, CFSP. There is no one-size-fits-all policy for all member states. We would not accept an attempt by a NATO member state to dictate to us that we should join that organisation and we would not dictate to it.

The protection of our position of military neutrality is already enshrined in our Constitution and there can be no better guardians than those given guardianship of military neutrality. Article 29.2.2° was one of the significant changes made between the first Nice treaty referendum and the second Nice treaty referendum. We had the Seville declaration, which recognised Ireland's position and we added a clause to the Constitution that made it very clear this State could not become part of a defence arrangement without the prior agreement of the Irish people. To do so would require a constitutional referendum.

There are other defences for our neutrality that are not as strong as that offered in Article 29.2.2°. There is the triple lock, which consists of Government decision, Dáil approval and United Nations authorisation. The important point is there is no power or mechanism in the treaty for the EU to oblige a member state to become involved in a defence arrangement. Unanimity is required, even for peacekeeping arrangements, and the EU has no power to oblige a member state to increase military spending. I feel we should not impose our views on other member states and neither I nor the Senator would be willing to have a view imposed on us. I think we have a shared opinion on this matter.

Ireland is already a member of the European Defence Agency, EDA, which was established in 2004. We aim to ensure we get value for money, we have the equipment we need and we deal with programmes case by case. I do not think this is sinister, although I do not expect the Senator to share my view.

The treaty allows for future permanent, structured co-operation in the area of defence by member states that wish jointly to develop capabilities. There is no obligation on Ireland to take part in permanent, structured co-operation. We can opt in if we wish but we can opt to stay out, if we so wish.

The treaty states that member states shall come to the assistance of fellow member states. I was surprised during the Dáil debates that the issue of coming to the assistance of a fellow member state was an allergic point. This provision refers to a case of a member state suffering a natural or man-made disaster, a terrorist attack or being the victim of armed aggression on its territory. The obligation in the treaty makes it clear it shall not prejudice the specific character of the security and defence policy of certain member states. The phrase Ireland penned to deal with its position is written into the treaty. Ireland will, therefore, retain its right to take its own sovereign decision whether or how it would come to the assistance of another member state. There is no threat to our tradition of military neutrality.

The changes introduced in the reform treaty will equip the Union to undertake widely supported crisis management tasks. In the Dáil, Deputy Aengus Ó Snodaigh characterised the Chad mission as a military adventure. It is certainly not that. It is a humanitarian intervention of the highest order. I regret that the Deputy and other members of Sinn Féin have not taken up this point. I accept Senator Pearse Doherty's contribution is more measured.

The mission seeks to assist people who have been displaced and have experienced generations of slaughter. They are people who have had their lives and livelihoods destroyed by warlords, their women raped and their children starved to death. It would be very wrong of any nation which is wealthy and has decent young men and women to help to stand in the way of assistance.

The Senator and I share different views on this overall matter. The Senator should consider the activities of the EU as not being militaristic and most definitely not aggressive. They are do with the highest standards of peacekeeping and humanitarian activities. I am not in a position to accept the amendment.

There is a risk that inserting the phrase, "To this end the State shall, in particular, maintain a policy of non-membership of military alliances", into the Constitution may have an opposite effect. It would come after the phrase "any such exercise shall be subject to the prior approval of both Houses of the Oireachtas". It could give rise to the question whether we already have such a policy of non-membership of military alliances. If we were to put it into the Constitution, we would have to explain to the people that there was a doubt whether the Constitution would allow this to happen by reason of some other constitutional provision or the treaty.

In fact, the safeguards in the treaty negotiated by the Government to copperfasten and protect our neutrality have been carefully calibrated to achieve precisely the outcome which, in good faith, Senator Pearse Doherty wishes to achieve. However, he lacks confidence that the Lisbon treaty will not take us somewhere else with this provision. I do not support his amendment because it could have the opposite effect and raise doubts where no doubts exists.

I do not agree with the Minister of State or Senator Alex White. Inserting into the Constitution the phrase, "the State shall, in particular, maintain a policy of non-membership of military alliances", would clear up the doubt that exists among the public. We must remember the Government voted down an amendment to the Constitution which would have enshrined neutrality as part of the Constitution. This amendment seeks to address some of the deficiencies in the Constitution and the Lisbon treaty. The best guardians of neutrality are not the parliamentarians but the people. Enshrining it in the Constitution would ensure the people, not the Cabinet or Oireachtas Members, would have the final say. I do not agree with the Minister of State or the other parties because outside of the triple lock mechanism, we have signed up to articles of mutual defence and, under Article 28, the appropriation of funds and the rapid accession to astart-up fund, all contained in the Lisbon treaty. I will press the amendment and call a vote on it.

There is great wisdom in the point made by Senator Alex White. The current arrangement is specific and unambiguous. The State cannot join a common European defence. The only way this can be changed is by the will of the people as expressed in a referendum. To insert an additional phrase, which could be overegging it, could raise legal questions. There will always be legal arguments as to how many angels dance on the head of a pin. There is no point in or purpose to this amendment.

I agree with Senator Pearse Doherty that the real protection in this matter comes from the people. That has already been enshrined in the Constitution. The protection the Senator seeks to ensure Ireland is not forced into a common European defence already exists.

Cuireadh an leasú.

Amendment put.

Will the Senators claiming a division please rise?

Senators Pearse Doherty and David Norris rose.

As fewer than five Members have risen, I declare the question lost. In accordance with Standing Order 60 the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.

Faisnéiseadh go rabhthas tar éis diúltú don leasú.

Amendment declared lost.

Tairgim leasú a 3:

I gCuid 1, leathanach 7, líne 31, "ó dhá Theach an Oireachtais." a scriosadh agus an méid seo a leanas a chur ina ionad "i reifreann i measc mhuintir an Stáit.",

agus

I gCuid 2, leathanach 9, línte 40 agus 41, "of both Houses of the Oireachtas." a scriosadh agus an méid seo a leanas a chur ina ionad "by referendum of the people of the State."

I move amendment No. 3:

In Part 1, page 6, line 31, to delete "ó dhá Theach an Oireachtais." and substitute the following: "i reifreann i measc mhuintir an Stáit.",

and

In Part 2, page 8, lines 40 and 41, to delete "of both Houses of the Oireachtas." and substitute "by referendum of the people of the State.".

I thank Senator Norris for supporting my amendments. As with these amendments, while only 4% of Senators are opposed to the treaty, the percentage will be far greater in the wider public. Amendment No. 3 addresses the requirement on the Houses of the Oireachtas to have a referendum of the people of the State. Instead of the Houses deciding issues, they would be decided by referenda.

As amendment No. 5, which is similar to amendment No. 3, has not yet been moved, I ask that the Minister of State take on board my contribution to accelerate the debate. Both amendments seek to ensure that any significant policy change in these areas requires the approval of the people of the State, not merely that of the Houses. They would ensure that people are informed and that such decisions are taken with the genuine approval of the people. There should be no fear of holding referenda on these issues.

The matter of democracy is to the fore of the debate on the Lisbon treaty. The treaty's failure to address the deep democratic deficit in EU institutions and at the heart EU governance is a major concern for everyone. In the 2004 European elections, only 59% of the Twenty-six Counties' electorate voted, more than 10% above the EU average of 45%. In the two Nice treaty referenda in 2001 and 2002, the turnout was even worse at 34% and 49%, respectively. In the Netherlands, the turnout was 39%, and it was 38% in Britain. Similar figures were recorded in Portugal, Spain, France, Denmark, Germany, Austria and Finland. A significant number of newer member states recorded turnouts of less than 28%. Some 18 of the EU's then 25 member states had turnouts lower than 50%, five having turnouts of less than 30%. Across the EU, voters no longer understand nor have confidence in what it stands for, where it is going and how it takes its most important decisions.

The rejection of the proposed EU constitution by France and the Netherlands in 2005 was a reflection of this uncertainty. Analysing why the French rejected the constitution, the eminent European historian, Donald Sassoon, stated, "There is no denying that the driving ethos of the Constitution was ‘market' Europe rather than ‘Social Europe'." He also highlighted the fact that many people "were afraid of ceding more powers to what they regarded as an unaccountable bureaucracy." Interestingly and in stark contrast with the 42% turnout in the 2004 European Parliament elections in France, 70% of voters went to the polls to reject the constitution by 55%. In the Netherlands, the turnout was 62%, of which 61% said "No".

After 18 months of reflection, EU leaders returned in June 2007 with the Lisbon treaty. All but ten of the 250 or so articles of the new treaty are the same as in its predecessor, a 96% match. It is important to cite this figure, as the Minister of State maintains it is 95%. Valery Giscard d'Estaing, chairman of the convention that drafted the constitution, speaking to the Constitutional Affairs Committee of the European Parliament in July 2007, stated:

In terms of content, the proposals remain largely unchanged, they are simply presented in a different way.... The reason is that the new text could not look too much like the constitutional treaty.

The vice-chairman of the convention, Giuliano Amato, went further when, during a speech at LSE in February of this year, he stated, "The good thing about not calling it a Constitution is that no one can ask for a referendum on it". That political leaders across the EU, including in Ireland, believe it is acceptable to ignore the outcome of the French and Dutch referenda and to return with the same proposals is an indication of their disregard for basic democratic principles. What clearer demonstration of the democratic deficit could there be?

The electorate of the Twenty-six Counties will vote on the Lisbon treaty in 2008. We will be the only state to do so, placing a significant responsibility on our shoulders to ensure that, before we vote, we understand the content and implications of the treaty fully. Sinn Féin wants society to have an open, honest and frank debate in advance of the 2008 referendum. We want a debate on the issues and what they mean for Ireland, the EU and the wider world. We want to ensure that future decisions with implications for the people of the State are taken with their assent following referenda. This is the purpose of these amendments and I ask the Minister of State to take them on board. Given the sovereignty of the people, which has been mentioned, why should we be afraid to put further decisions on the treaty's implications to them?

Amendment No. 3 addresses the Schengen Agreement area. Under the Bill, Ireland could opt out of the agreement wholly or in part with the approval of both Houses. Speaking as someone from the Border county of Donegal, opting out of the agreement while the United Kingdom remains would have serious consequences for those living in Border areas. A decision of such magnitude should be taken only by the people.

Senator Doherty mentioned "market Europe" and "social Europe". We should be happy about the former because, as an open economy, we can sell our produce across the free markets of an expanding European Union. Ireland has benefited socially from the policies of the "social Europe" of which it is a member state, a fact that many fail to remember. Without our membership, we would have had fewer social policies.

I regret that I must be brief, as I must answer parliamentary questions. I understand Senator Doherty's point on Border counties and will give him an assurance — the issue under discussion is not related to the Schengen Agreement. Rather, it relates to justice and home affairs. Our current position on the agreement is regrettable and relates to the British attitude to it. The last thing any Member wants is to see another border coming down. While I agree with the Senator's point, the issue is irrelevant.

I thank the Senator for discussing amendments Nos. 3 and 5 together. He is aware that I am under pressure. We cannot accept amendment No. 3 because requiring a referendum for each change would be to trespass on the people. The process would be debased and we would run the risk of the onset of referendum exhaustion. Subsection 13 provides for Ireland to choose which criminal justice or police co-operation measures to participate in on a case-by-case basis. There is not a large body of public opinion to the effect that we should not participate in bringing to a halt international criminality. For example, nobody would support those involved in specified criminal activities, such as the trafficking of humans or drugs, or make it easier for them. We have constantly supported practical EU anti-terrorism measures and concerted action against organised crime. That is the aim of this section of the treaty. It will move Europe forward in terms of combatting international criminality which states cannot address individually. The reason we took a prudent approach is that we have a different legal system. We will find out the actual position on conclusion of the three year review period we have inserted. I ask Senator Doherty to accept my assurance that this section does not focus on Schengen but on a matter on which I think we would agree, namely, that the EU should take concerted action against terrorism, cross-border crime, human and drug trafficking and money laundering. I may have misunderstand the Senator's colleague in the other House when this issue was being pressed because I was not aware he was focusing on Schengen.

Cuireadh an cheist: "Go bhfanfaidh na focail a thairgtear a scriosadh."

Question put: "That the words proposed to be deleted stand."

Will the Senators claiming a division please rise?

Senator Pearse Doherty rose.

As fewer than five Members have risen, I declare the question carried. In accordance with Standing Order 60 the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.

Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.

Question declared carried.
Faisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.

Amendment No. 5 is a technical alternative amendment to amendment No. 4. Amendments Nos. 4 and 5 may be taken together by agreement. Is that agreed? Agreed.

Tairgim leasú a 4:

I gCuid 1, leathanach 7, línte 32 go 49 a scriosadh, agus leathanach 9, línte 1 go 7 a scriosadh agus an méid seo a leanas a chur ina n-ionad:

"14° Ní choisceann aon fhoráil atá sa Bhunreacht ar an Oireachtas reachtaíocht a achtú chun cinntí a rialáil nó a dhéanamh, nó chun éifeacht a thabhairt do chinntí den sórt sin, faoi na Conarthaí ach amháin i ndáil le haon bheartas um chomhchosaint a mbeadh an Stát san áireamh inti.",

agus

I gCuid 2, leathanach 9, línte 42 go 49 a scriosadh, agus leathanach 11, línte 1 go 17 a scriosadh, agus an méid seo a leanas a chur ina n-ionad:

"14° No provision of the Constitution prevents the Oireachtas from enacting legislation to regulate, give effect to or take decisions under the Treaties except in relation to any common defence policy which would include the State.".

I move amendment No. 4:

In Part 1, page 6, to delete lines 32 to 49, and in page 8, to delete lines 1 to 7, and substitute the following:

"14° Ní choisceann aon fhoráil atá sa Bhunreacht ar an Oireachtas reachtaíocht a achtú chun cinntí a rialáil nó a dhéanamh, nó chun éifeacht a thabhairt do chinntí den sórt sin, faoi na Conarthaí ach amháin i ndáil le haon bheartas um chomhchosaint a mbeadh an Stát san áireamh inti.",

and

In Part 2, page 8, to delete lines 42 to 49, and in page 10, to delete lines 1 to 17 and substitute the following:

"14° No provision of the Constitution prevents the Oireachtas from enacting legislation to regulate, give effect to or take decisions under the Treaties except in relation to any common defence policy which would include the State.".

Subsection 14° of Part 2 deals with the Passerelle options, which provide that the Council can decide unanimously to replace unanimous voting in the Council of Ministers with qualified majority voting in specified areas set out in subsection 14.

In simple terms, this means where an element of policy is decided unanimously by Council, the relevant matters may be decided by qualified majority voting in the future. To do so, however, the Council needs to decide unanimously to make this change, giving each country a veto at the outset. It is essential to remember this provision simply pertains to a change in the decision making process, not the competences of the Union itself. In voting for this process, the Government would never require a constitutional referendum. The powers to engage in this procedure and vote at the Council of Ministers are already inherent in Government. It is clear the Government is including the provision in this Bill solely for the purpose of transparency.

My amendment revises subsection 14° and suggests a clearer text. We have received oral and written confirmation from the Minister of State that the insertion of this subsection into Article 29 of the Constitution is not necessary. The powers contained within it are already inherent in the Government and do not require explicit conferring in this manner.

The insertion of this detailed provision is perhaps intended to pre-empt the "No" campaign inasmuch as it may accuse the Government of covering up the Passerelle provisions. While we understand that rationale, we are not of the view that inserting unnecessarily detailed and time limited provisions into the Constitution is good practice. We have already alluded to our desire in regard to Senator Alex White’s amendment to avoid overburdening the Constitution with too much detail. The tenor, quality and integrity of the Constitution would be at risk if a series of such amendments were made. It is a principle of good constitutional practice and drafting that the text be succinct and clear, and that it operates exclusively as the higher law. Specific powers should be created under statute. The effect of the proposed subsection is to insert an unnecessary specific provision which is legislatively detailed and limited in time. This amendment should, therefore, be accepted.

As I noted previously, my comments on amendment No. 3 regarding the need to refer back to the Irish people are also pertinent to amendment No. 5.

I am grateful to both Senators for their understanding. While I accept the points raised by Senator Cummins, I am strongly committed to enhancing the role of the House in scrutinising Government decisions in the sensitive area to which the subsection refers and I cannot, therefore, accept his amendment. I am aware he does not intend to remove powers from the House but it would have that exact effect. His is a counter-intuitive proposition.

If we went the route advocated by Senator Doherty, we would trespass on people's time and would not maintain a sustainable position. The purposes for which he intends his amendment are already achieved in the legislation. Unanimity in Council and the agreement of every parliament, including the Oireachtas, will be required. Therefore, significant protections already exist. I cannot accept his amendment.

Cuireadh an cheist: "Go bhfanfaidh na focail a thairgtear a scriosadh."

Question put: "That the words proposed to be deleted stand."
Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.
Question declared carried.
Faisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.

Tairgim leasú a 5:

I gCuid 1, leathanach 9, línte 6 agus 7, "ó dhá Theach an Oireachtais" a scriosadh agus an méid seo a leanas a chur isteach "i reifreann i measc mhuintir an Stáit",

agus

I gCuid 2, leathanach 11, líne 17, "both Houses of the Oireachtas" a scriosadh agus an méid seo a leanas a chur isteach "a referendum of the people of the State".

I move amendment No. 5:

In Part 1, page 8, lines 6 and 7, to delete "ó dhá Theach an Oireachtais" and substitute the following "i reifreann i measc mhuintir an Stáit",

and

In Part 2, page 10, line 17, to delete "both Houses of the Oireachtas" and substitute "a referendum of the people of the state".

Cuireadh an cheist: "Go bhfanfaidh na focail a thairgtear a scriosadh."

Question put: "That the words proposed to be deleted stand."

Will the Senators claiming a division please rise?

Senator Pearse Doherty rose.

As fewer than five Members have risen, I declare the question carried. In accordance with Standing Order 60 the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.

Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.

Question declared carried.
Faisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.
Cuireadh agus aontaíodh an cheist, "Gurb é an Sceideal an Sceideal a ghabann leis an mBille."
Question, "That the Schedule be the Schedule to the Bill", put and agreed to.
Aontaíodh ailt 1 agus 2.
Sections 1 and 2 agreed to.
RÉAMHRÁ.
PREAMBLE.
Aontaíodh an Réamhrá.
Preamble agreed to.
TEIDEAL.
TITLE.
Aontaíodh an Teideal.
Title agreed to.
Tuairiscíodh an Bille gan leasuithe.
Bill reported without amendment.
Ordaíodh go dtógfaí an Tuarascáil Dé Céadaoin, 7 Bealtaine 2008.
Report Stage ordered for Wednesday, 7 May 2008.

When is it proposed to sit again?

Next Wednesday, 7 May 2008, at 12.30 p.m.

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