Dáil Éireann díospóireacht -
Thursday, 28 Nov 2002

Vol. 558 No. 3

European Communities (Amendment) Bill, 2002: Committee Stage.

SECTION 1.

Question proposed: "That section 1 stand part of the Bill."

Mr. J. O'Keeffe

This is the principal section of the Bill. It deals with the amendment of section 1 of the European Communities Act, 1972. The basic point we touched on in our Second Stage remarks was that we are looking forward to a further amendment of that Act following the next Intergovernmental Conference. That leads to the points raised in connection with the convention. Frankly, I am not satisfied with the Minister's Second Stage response. The analysis in today's The Irish Times of the lack of input from the Government to the convention cannot be dismissed as merely the result of a hot bed of intrigue in Brussels. It is an analysis by an experienced correspondent whose comments are devastating. He stated that:

. . . the Government appears confident that its deeply conservative approach to Europe's future will win the day.

This analysis is almost certainly wrong and if the Government does not move fast, it will be out-manoeuvred in the final negotiations.

I do not mind the Government suffering loss of face; I am worried about the country, unfortunately, a country that at this time is ruled by this Government. He goes on to state:

Such an outcome would not only damage Ireland's national interest; it would leave the Government once again with the sorry task of selling to the Irish people a treaty it does not itself believe in.

That is why I sought an outline from the Minister on where the Government stands in relation to the convention but I have not got it. We have got wonderfully Lenihanesque flowery phrases which is a reminder of what we used to get from the Minister of State's father as Minister for Foreign Affairs. He was just telling us about the Government taking a full and active part in the proceedings and being positive and constructive and recognising the need for reform. We all know this sort of blandness is an excuse for not replying to the questions. To tell the House the Minister, Deputy Cowen, responded to parliamentary questions on the issue is not sufficient. This is where we are debating Europe and there are no responses from the Government. I do not expect full responses and, I suppose, the Minister of State would be brave to give full responses. I would like a commitment from the Minister, on behalf of the Government, that from now on there will be a clear exposition of what the Government is seeking from the convention and a clear effort to input that to the convention and, furthermore, an opportunity for that approach to be fully debated in the House. We have not had any such debate and without it the Government is leading this country in the dark so far as the convention is concerned. This is made worse by the fact that the work of the convention has been largely dismissed by the Minister, Deputy Cowen, as being irrelevant. That is a serious fundamental mistake which will cost this country dear, as mentioned in this article today.

Mr. Quinn

In the spirit of co-operation that time requires I want to take up a point referred to by Deputy Harkin. I do not know if she heard my contribution prior to coming into the Chamber. I made substantially the same point. On Committee Stage, if we wanted to be difficult and obstructive, we could ask the Minister of State to clarify, for example on page 4 of the Bill, paragraph (f) which states:

the Treaty amending certain Budgetary Provisions of the Treaties establishing the European Communities and of the Treaty establishing a single Council and a single Commission of the European Communities, signed at Luxembourg on the 22nd day of April, 1970,

The Minister of State may have made his First Communion in 1970 for all I know. We could do that and we could be difficult but he is expecting the European Affairs committee to deal with this kind of thing with absolutely no resources. The thrust of the point I made, and which Deputy Harkin, as a new Deputy, has made is that without the backup of a party or the experience of being here for a number of years, it is very difficult to do the work of this committee.

If the Minister wants to get the referendum passed to give legal effect to the convention's outcome and the intergovernmental conference within the lifetime of this Government – it will be within the lifetime of this Government – he has to start working for that now. He has to address on the "Yes" side those of us who reluctantly voted "Yes" for what was a bad and imperfect treaty but nevertheless better than the alternative. The serious issue of the democratic deficit that pertains here was enunciated as recently as this morning by the Tánaiste when she said this particular measure is required by the EU, in other words, it was being imposed on this Chamber by the EU, without any explanation or any reference. If the Minister wants those of us who campaigned for a "Yes" vote and this country to vote knowingly and constructively for the outcome of the intergovernmental conference, he has to start now; he cannot do it in a second referendum. The first thing he has to do is to make resources available to the European Affairs committee.

Mr. Gormley

Section 1 serves as a good historical reminder of how far we have come because from 1972 it lists all the accession treaties. At Laeken we were told to go out and simplify the treaties but not to add to them. Unfortunately, the convention has taken on its own momentum and Giscard has a sense of his own historical destiny and he certainly wants to put his mark on history. He may well succeed in doing that.

Mr. B. O'Keeffe

He does not want to add the Turks.

Mr. Gormley

I was about to come to that point. This is an interesting point.

Mr. B. O'Keeffe

It is an issue that should be debated here.

Mr. Gormley

The Deputy has diverted me slightly but I will take him up on that point. He did make a statement to the effect that he wanted to exclude Turkey and he may well have been articulating a view that is common within the European Union.

Mr. Quinn

Which it is.

Mr. Gormley

There are many reasons for this and I heard them stated yesterday when I spoke with a number of ambassadors about the question of human rights, to which many referred; the clash of cultures, as some see it; their standard of living and how far behind they may be. There is another question which, perhaps, may not have been thought about – the size of population. I was astounded when a well informed individual told me the population at the time of the First World War was only about 4 million but it has increased amazingly and by 2020, if allowed, it will be the biggest country within the European Union. It would be a welcome development to allow Turkey to join if it had its human rights record dealt with in a substantial way. I do not believe in exclusion.

Another reason many put forward was whether we really want a European border with Iraq. I would like to hear the Irish Government's position on this issue. It is a fundamental question because we try to play it every way. We try to pretend. We go to these meetings with our European partners and say: "Yes, you are right" and go to Turkey and say: "Please come in".

To return to the point of simplification, what we have here is a way of trying to sell this to the Irish people. I understand the last thing the Government wants to call this is a constitution because Bunreacht na hÉireann is sacrosanct to many in Fianna Fáil. They do not want a European constitution. Many of them would prefer to call this the consolidated treaties and sell it on that basis.

One of the lessons of Nice was that there would be no choice. There was great triumphalism in Dublin Castle but I knew from the outset – I said this to those who wanted to listen, including the Minister, Deputy Cowen – that it would go through. It went through because it had to go through. We, the minority, were up against a huge giant, the Establishment, and we never had a chance. We were up against political parties, the media, the Church, the farmers, the unions and big business. How could we, a relatively small party, face up to that and expect to win? It was an impossible task. We did not have the type of debate on this that I would have liked. What we got were regrettable tactics, the type of scaremongering tactics used by some elements of the "No" side on the last occasion. They simply looked at what they did on that occasion and decided it worked and they should try it again. That is how they went about it.

This is a historical document. The convention brings all this documentation together and produces a synthesis.

Mr. Quinn

That is right.

Mr. Gormley

The question is will we have a debate on this or are we to revert to scare tactics? Are we to have a choice? Deputy John Bruton performed a very valuable task in this regard which was not referred to by Deputy O'Keeffe. It is now accepted that in the presidium Giscard wanted to introduce a provision that if a member state rejected this by way of referendum it could be expelled. We could be expelled from the European Union for rejecting a referendum. This threat has been used before. Deputy O'Keeffe asked what would happen if we rejected it, would Europe throw us out? It could not throw us out. People are now talking about introducing such a mechanism, and that would be very regrettable. Where is the element of democracy? If one wants to give real legitimacy to a constitution why not have a European-wide referendum? What are people afraid of?

One may speak about the constitutional difficulties of various member states and the fact that they cannot hold referendums. The Germans have their historical difficulties with the idea of a referendum.

Mr. Quinn

For fairly good reasons.

Mr. Gormley

Yes. As I indicated to my colleagues, there is a need to look afresh at this. There is a need for a real debate within the European Union. I regret that what is happening in the convention is far removed from the ordinary citizen. The ordinary taxi driver in Brussels is not aware of this convention. The ordinary citizen in Dublin or any part of this country is not aware that there is a convention on a constitution for the future of Europe. Their first reaction would be, "I thought we just decided that by way of referendum, what are we talking about now?" It leads to confusion and leaves one wondering where all this is going to end? Is there an end game or will this go on and on?

It is clear there is a push for a common defence. The people go through the discussions on Nice and agree it – in many cases they do not know what they have agreed to – and then we get this through by way of a second referendum. The same issue is then placed back on the table and eventually Europe gets what it wants. It is incremental change. Our sense of ownership is being eroded.

The Government's view of a European Union – I heard the Tánaiste, Deputy Harney, and others say this – is, as I understand it, a union based on a nation state. What does this mean? Does it mean the Government wants a federation of nation states? Does it want a united nations of Europe – that is one of the titles used by Giscard? Is that what the Government wants? Does it want a united states of Europe? The Minister of State appears to be excluding each of these options.

Mr. B. Lenihan

The Minister dealt with that matter. It is on the official record of the House.

Mr. Gormley

I know what the Government does not want. The Minister of State has said "No" to two things, but I would like him to articulate what the Government wants.

Mr. J. O'Keeffe

That is what we should be debating.

Acting Chairman

We must conclude this debate at 1.30 p.m. and we still have four more sections to deal with.

Mr. Gormley

I accept that. A number of issues have been raised such as the appointment of a president and how that person would be elected. The Minister referred to electoral colleges and the whole idea of subsidiarity which was first introduced in Maastricht. What is the Government's position in that regard? Should the national Parliament have a role in deciding that issue? These are vital questions.

This is a very interesting document. It shows us how far we have come. The next part of the road map is the convention. How do we produce a document out of that?

Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan)

Many issues have been raised. Deputy Quinn raised the question of committee resources – this was also raised by Deputy Harkin on Second Stage. For an Oireachtas Committee to function in a proper manner adequate resources must be committed to it. I know Deputies appreciate that it is not the function of the Minister for Foreign Affairs to create an Estimate for that purpose.

The Government has advanced legislation through this House providing for autonomous control over the budget and allocation of finances within this House which is important in this regard. The evidence of the forum suggested that those committees which have worked well in other jurisdictions have been well funded. A mass of documentation, as pointed out by Deputy Harkin, is emerging from the European Union. It is, however, not like domestic legislation. It is possible for a Deputy who is not a member of the Government to collect a copy of a Bill, study it and make a reasoned judgment on it. It is far more difficult to do that with Community legislation drafted with a very different legal technique and with different presuppositions representing, necessarily, a comprise between many member states. To make an intelligible translation of such a document from Brussels to Leitrim, as mentioned by Deputy Harkin, is a very difficult challenge. I accept that more resources should be given to the committees.

The position of the Government in relation to the convention was raised. I spoke about the Government's general approach to this at the conclusion of Second Stage. On the issues of substance, the Minister made it clear that he supports the current identification of the Communities as the European Union. He has expressed reservations regarding a change in that nomenclature. It is not for the Minister for Foreign Affairs to try to predetermine the conclusions of this convention. There is a delicate relationship between the intergovernmental conference and the position of the Government and the convention. The convention has been asked to do a job. Some Deputies, including Deputies Gormley and John Bruton, the Minister, Deputy Roche, and Proinsias De Rossa MEP are playing a full part in that. We are asking Deputy Gormley to shape the new Europe. He cannot sit back and say this is all very remote to 400 million citizens. He is being brought to the heart of this issue. Whether he likes it, Deputy Gormley is now part of the Establishment. He comes in here and talks about the Establishment when he is now one of the leading pillars of it in Brussels.

Mr. Quinn

A former Lord Mayor could never not be part of it.

Mr. Gormley

I would like the back-up of the Establishment.

Mr. B. Lenihan

Deputy Gormley raised a good point in relation to the word "constitution". I accept it is a somewhat intimidating word. It is, in our arrangement, a bunreacht, which is a basic law. The Germans use the same phrase in German for their constitution. That is the best description I can come up with if I am to make a contribution to the proceedings of this convention. It is not a bad description but I do not say it as the imprimatur of Government policy. The convention seeks to devise a basic law for the European Union, a law that is intelligible for citizens. Deputy Ó Caoláin referred to republicanism. What should be fundamental for republicans is that the citizens should know the laws of the State. One of the most difficult matters with the European Union is the inaccessibility and arcane character of the legislation. A straightforward statement of principle as to where the Union stands on the legal plane is welcome.

Deputy Gormley and others referred to the principle of subsidiarity. That is an attempt to clarify the precise competences of the Union as against the precise competences of the member states. Subject to careful examination of any legal formula that may be devised, we welcome the principle of subsidiarity being entrenched in the basic law. The question of legal personality has also been raised and not for the first time. An earlier merger treaty fused EURATOM, the European Community and the European Coal and Steel Community. We have no difficulty with personality.

I am not speaking for the Government but there has been too much concentration on the issue of personality in the debates of the convention. The community should have a personality but continental lawyers and jurists have always been obsessed with the theory of legal personality. I have no difficulty attributing a personality to the Union.

Mr. Gormley

How does the Minister for Justice, Equality and Law Reform feel about that?

Mr. B. Lenihan

The Minister for Justice, Equality and Law Reform has reservations about the harmonisation of criminal law and the codes of criminal law. It is a legitimate concern. Our system, along with that which operates in the United Kingdom, is the result of a long, historical evolution which has provided a degree of protection for persons accused of criminal offences. The continental system is different. I do not say it is worse, but it is the result of different historical growth with many of its roots in the canon law courts. The tradition is different and it is not easy to marry those traditions as advocated.

There is a danger that vital protections in our system will be lost through a careless transposition. The Minister for Justice, Equality and Law Reform has expressed that, perhaps more forthrightly than I have. He has strongly championed that point of view.

Mr. J. O'Keeffe

How does he stand on the charter?

Mr. B. Lenihan

Bear with me here, because every word is of significance. Debate on the charter has to start with what happened at Nice. The charter was promulgated at Nice and given the status of a political declaration. We fully supported that. Some wanted to move towards full incorporation at that time but we were not satisfied that, as the charter was then drafted, all of the legal issues associated with incorporation had been addressed. We are aware that within the relevant working group at the convention, important work has been carried out on what has been described as the horizontal articles of the convention. What these unexciting horizontal articles deal with is the limitation of the scope and application of the charter. Drafting amendments to bring greater clarity and certainty to these questions have been proposed by the group.

The Government is not in a position to give a definitive view on the issue. The core difficulty is that the charter of fundamental freedoms here is contained in Articles 40 to 44 of Bunreacht na hÉireann and the people have direct control over the content of these Articles through referendum. We have always accepted the system of the European Convention. At Strasbourg we were one of the first states to accept both the compulsory jurisdiction of the court in Strasbourg and the right of individual petition. There was never a problem on the intergovernmental or international sphere in our participation there.

The question of the charter has to be carefully examined to ensure that it does not encroach on the protection that Articles 40 to 44 provide in regard to the enactments we pass here. That is a vital interest of the State.

Mr. J. O'Keeffe

In principle, is the Government in favour of legal enforceability of the charter if it does not impinge or encroach on the existing protections under our Constitution?

Mr. B. Lenihan

I made it clear that the Government has not arrived at a definitive view. Deputies will appreciate that the juristic questions here are profound and require careful examination. The question—

Mr. J. O'Keeffe

Is it not the role of the Government to arrive at a view?

Mr. B. Lenihan

I outlined the view of the Government on a number of issues including legal personality and the name of the Union. The charter is an attempt to provide a constitutional guarantee of fundamental rights within the Community's own legal order. To some extent that is already implicit in Community law. The Court of Justice in Luxembourg has said on numerous occasions that the phrase, "the jurisdiction of the court extends to ensuring that the law has observed", includes within it, implicit in that definition, the idea that certain fundamental rights have a prior status in the Community legal order. If what is involved in the charter is to make that explicit, the Government would be open to looking at that. That is as far as I can put that matter.

Mr. Quinn

I offer the following observation from the Labour Party point of view, working within the party of the European Socialists and the Christian Democrats, the European People's Party and the Green Party. Deputy Lenihan invited Deputy Gormley to be adventurous and courageous and to help shape the convention. Undoubtedly, he is doing that through his own participation. Our concern about the Government's silence is that party positions will attach themselves to certain outcomes in the convention and we will be wedded to those outcomes through the process of negotiation and bargaining. If subsequent to that, the Irish Government – which has remained silent to date other than saying the current balance of the institutions should not be changed – remains silent at the Intergovernmental Conference we could find ourselves in the run up to a referendum where the outcome of Nice – mark 2 is seen as a disaster and therefore we cannot support it. That is why it is essential that the Government articulates its position.

Mr. J. O'Keeffe

I have a proposal for the Minister of State. He may not be able to give a specific answer but perhaps he can show genuine support for colleagues. There is a need for the Government to produce a position paper. We should have a position paper, any colour, setting out the Government position on the issues being discussed in the convention. Will the Minister discuss that with his colleagues? This discussion paper could then be debated fully in the House in a non-partisan manner so that what emerges can have as great an input as possible.

Mr. Durkan

As a member of the charter convention I recall the Government had no great problem with most of the charter. It had a problem with just one or two items. We should recognise that we could all aspire to and agree with 99% of the charter. Will the Minister and the Department spend some time trying to identify the areas causing a problem. That could be promulgated through Deputy O'Keeffe's notion of a position paper. If that does not happen we will give the message to the people that there is something to be feared in the charter when in fact the charter is something to which we should subscribe.

Mr. B. Lenihan

I am a little alarmed at Deputy Quinn's use of the phrase "Nice – mark 2". Perhaps Deputy Gormley might christen the treaty that way but I would not like to see it christened in advance. One of the difficulties we have is that we do not have a final text. I have seen a contents page but we do not have a substantive document on which to comment. It is a bit unwise for Government to put its position on record in regard to an objection it has to a proposal that is not in existence.

I am not in a position to give Deputy O'Keeffe an undertaking that a paper will be published. I will bring to the attention of the Minister the Deputy's wish that he put on record the clear position of the Government.

Acting Chairman

As it is now half past one, in accordance with the Order of the House this day, I must put the following question: "That each of the sections of the Bill undisposed of and the Title are hereby agreed to in Committee and the Bill is, accordingly, reported to the House without amendment, that Fourth Stage is hereby completed and the Bill is hereby passed."

Question put and agreed to.