JOINT COMMITTEE ON EUROPEAN AFFAIRS díospóireacht -
Wednesday, 26 Feb 2003

Vol. 1 No. 14

Convention on the Future of Europe: Presentation.

Chairman

We meet for a discussion with the Institute of European Affairs on progress at the Convention on the Future of Europe. For the information of visitors, the various stages of the convention have been considered with convention members and we now meet them in advance of plenary sessions. There is an opportunity for an exchange of views and they go to the convention equipped with the views of members.

Our visitors may be aware that, under statute, the committee has a scrutiny role which means that within four weeks we must receive copies of all draft proposed regulations and directives. Since October, the committee has considered about 200 of these, one quarter of which have been referred on. Each month, the committee examines the Minister, before he goes to the General Affairs and External Relations Council, as part of a pro-active role in seeking to influence European affairs by going through the agenda with the Minister. Our role in meeting with convention members falls into that.

I am pleased to have the delegation here today. Members of the committee have received advance copies of the report which will be launched later today. I welcome Dr. Garret FitzGerald, Professor Brigid Laffan, Mr. Alan Dukes and Ms Jill O'Donoghue.

Dr. Garret FitzGerald

I am delighted to be here and to be involved with the path the committee is now taking. It allows the Oireachtas an active role which it did not previously have. I wish to highlight a number of points. It is unfortunate that in listing the values and objectives of the Union, those which are specifically European were not identified. Those values are very much Irish values also but are not necessarily shared in other parts of the world, for example, the United States. They include the supranational elements in human rights controls, the zone of peace created in western, central and northern Europe, the role of development co-operation for which Europe has taken the initiative but which is not followed to the same degree by other parts of the industrialised world, the European role in the study of global ecology and the European commitment to human life leading to the abolition of capital punishment. It would be useful if these issues could be introduced to the preamble of the new treaty to emphasise what Europeans share and what differentiates us from other parts of the world. That would be good for Ireland and Europe.

There is a suggestion that future treaties might be adopted without unanimity. At first sight, this may concern people in Ireland but if, in a Union of 25 countries, one country can prevent something happening, it would be very hard to make progress. There is a case for modification. There is also a suggestion in the informal document circulating inside the Commission that the treaty might be adopted in that way. That might be very difficult and I am not sure if it would be constitutionally possible because the existing treaties provide for unanimity. However, the point has been raised and it is important to be aware of it as people may be concerned about it.

On the institutional side, the sole right of legislative initiative of the Commission has been crucial to Ireland in preserving its interests and those of other small countries in a Community which contains some very large countries. We note the proposal that the President of the European Council be chosen for two and half years or five years. This could shift the balance away from the Commission in a manner which could be uncomfortable or dangerous for smaller countries. I was told in Brussels recently that when Ministers debated in the plenary session, 55 people spoke against, 15 were in favour and 16 were indeterminate. I also heard that some of those who voted in favour were persuaded to modify their position by their Governments in the following days. It is interesting that there was such large scale opposition to this idea but that does not mean it will not go through under pressure, and that is a concern for us.

A suggestion that has been made privately but which may emerge at some point is that there will be a presidency of the European Council, but a team presidency balanced geographically and in terms of large and small states rather than just one person. Another suggestion, perhaps a more difficult one, is that of an integrated presidency with the same person presiding over the Commission and Council. It is unlikely to be accepted and might also mean that the European Council would want a much bigger role in selecting the President of the Commission if he or she was to be President of the European Council also.

There are concerns that clashes could develop between the President and the external representative, and that there would be in-built tensions in the system, instead of there being a balance between the Commission, the President and the communitaire system. There are many different suggestions for an external representative to replace the dual system currently in place. One suggestion is that the vice president of the Commission might at the same time be in the Council. The need for something of that kind is clear but there is a danger of duplication. What would that person's job be if the President of the European Council was also doing some of these things?

There has been a proposal that the European Parliament would elect the Commission President. An Irish proposal, supported by Denmark, is that the Parliament plus an equal number of representatives of national parliaments would elect the President. There is something to be said for that in terms of increased legitimacy in drawing the President's power from the member states and their people, and I hope thought will be given to that. The nomination process for the presidency is also important. It is one thing to decide which group will choose the President but another to decide which group of candidates will go forward. If the nominating power rests with the European Council, that might limit the range of choice.

On policy, an important area for us is external action, including the CFSP and defence. There is much to be said for keeping those issues together so that, instead of having a separate defence policy, defence would focus on the crisis management function of CFSP. It is a proposal from working group seven to include something about the values of the European Union with regard to CFSP and defence, and that would be useful.

A case could be made for more emphasis on development policy, which was not initially highlighted. The proposal for extension of the Petersberg Tasks seem well thought out and in line with our aspirations. There is also a suggestion with regard to qualified majority voting on CFSP but it is not agreed. There is a suggestion as to whether constructive abstention might be a means of getting over some difficulties and we must consider whether enhanced co-operation is a way through in this regard. Enhanced co-operation became controversial during the last referendum but it at least means that one has some control and some say. It can only develop under strict conditions but whether it should apply in the CFSP area is worth considering. An opt-in protocol in regard to these matters would be worthwhile in that a country would not be involved in a measure unless it specifically opts in.

There is a solidarity clause against terrorist threats which has a great deal to be said for it, if it is clearly distinguished from the common defence, as is suggested. Collective or common defence is unlikely to result from this measure, as not only would neutral countries object, but others would do so too for different reasons. One would instinctively have doubts about the mention of an armaments agency, but perhaps we should wait and see the form it takes. An armaments agency that would control competition in the selling of arms could be a good thing. We need to know more about this matter before we decide on our position.

The area of security and justice is an important one. A working group has produced a positive report with modest and carefully considered proposals. One can conceive of many problems in this area, such as the difficulties of reconciling civil and common law, but we think they can be overcome. The question of qualified majority voting being used in certain limited cases needs to be considered. It is important that we do not get too hung up on these issues and that we find positive solutions to the problems that exist.

There has been a tendency in Ireland to see economic governance as an interference in our autonomy, but we should see it as preventing large countries from causing economic crises. Ireland cannot cause an economic crisis, as it is too small. Germany's decision to achieve unity on a basis that involved a particular relationship of currencies destabilised the EU economy and held up Irish growth for three years. The boom in this country started in 1990, but was aborted and did not start again until 1994. Ireland has a strong vested interest in ensuring that large countries are not allowed to destabilise the European economy. We should not over-emphasise the problems that economic governance might cause for us, but rather we should think in larger terms.

I will now discuss social policy, an area in which there can be a false dichotomy between Berlin and Boston. Few people want to go to some of the extremes of Berlin in terms of, for example, spa holidays for workers every couple of years, although the Germans do.

Deputy Haughey

Why not?

Dr. FitzGerald

I am saying that I do not think we all want to pay for it, as it can be extreme. We do not want a health service like that in Boston, on the other hand. A balanced approach is desirable in terms of social policy. It has been proposed that the social partners should be recognised in the EU constitution. I do not understand those who suggest we should have some difficulties in that regard, given that Ireland's extraordinary social partnership record is not shared elsewhere. I would have thought that we would be in favour of such a move.

The question of social rights is always a problematic one, as the courts will end up deciding what moneys should be spent on what social projects if one goes too far with it. On the other hand, the idea of expressing social rights in terms that will guide the Union in future is a valuable one. The working group dealing with social rights has suggested distinguishing principles and values, in relation to matters such as fundamental human rights, except in the interpretation of member states' measures to give effect to community law. It seems to be a good approach. Ireland's primary interest in these matters lies in maintaining the communautaire method and in not allowing things to move towards any form of intergovernmentalism, which always leaves smaller countries in a weaker position. We have to consider our position and tactics. The proliferation of difficulties and small points can prevent one from getting one's way in the large matters, although that is a matter for the Government to decide before the intergovernmental conference.

We have to recognise that the first referendum on the Nice treaty did not help Ireland's cause in Europe. We have come through the two referendums, however, which gives us more right to talk in certain respects than other countries which do not hold referendums. The people are well-informed and have shown that they are positively pro-European. We should present the outcome of our referendums in a positive light, rather than being ashamed of it or apologetic for it.

Mr. Alan Dukes

I have nothing to add to the substance of Dr. FitzGerald's remarks, although I would like to say one or two things about procedure and process. The institute has been concerned with identifying the principal issues that need to be examined, particularly those that are important for Ireland. Certain procedures to that effect have been adopted in the working group, chaired by Dr. FitzGerald. We will look at a different method of approach now that draft articles of the treaty have been published. We are concerned with being able to react quickly and to give advice and opinions, where appropriate. Given that the new approach is to be adopted and the committee is to meet weekly, it would be useful if we could maintain a liaison between the committee and the institute, so that we can seek advice when we need it. It would also be helpful if we could offer assistance to the committee, where appropriate.

Chairman

We have no intention of cutting back to weekly meetings.

Mr. Dukes

I am glad that the Chair has maintained his vigour.

Deputy Carey

I am pleased to welcome representatives of the Institute of European Affairs to this meeting and I welcome the presentation they made. I have gone through some of the institute's previous work in detail. I seek guidance and advice from the eminent people who are present. Dr. FitzGerald and I attended the presentation of the results of the review by representatives of the Commission. We would like to think we have contributed significantly to heightening people's awareness of the Nice treaty, and so on. Dr. FitzGerald might confirm that the media's information processes were far more effective than the limited contribution of public representatives. We should be anxious to promote extensive debate and I welcome the chance to speak at this meeting to initiate that process.

It is right that the issue of ratification should be the subject of a significant debate. The question of whether there should be a right to voluntarily secede will be raised. It will be a difficult and controversial topic. I sometimes think it has been proposed for the purposes of making mischief. I would like somebody from the institute to outline where it is envisaged that difficulties will emerge, and how they might be addressed. It is fair to say that the traditional rotating EU Presidency will not continue indefinitely. The idea of a team Presidency, which has been proposed by Ireland and others, is worth examining. How can a team Presidency be made representative? For how long should such a Presidency last? How, for example, should geographic, linguistic and cultural difference be addressed? How would such differences be reflected in a team Presidency? I wonder if the institute has any thoughts on this matter.

I would like to hear some elaboration about the election of the Commission President. I know the delegation's documents contain some information on this matter. I had not thought about the process of nominating a candidate or candidates until Dr. FitzGerald mentioned it. Perhaps we can talk about this matter. It is fair to say that the working group on freedom, security and justice had concerns about the issues of harmonisation of laws and legal systems. Dr. FitzGerald said that civil and common law systems could be recognised - how might that be done? This issue should be addressed as certain fears need to be allayed.

The inclusion of social partnership in the new constitution was raised by Dr. FitzGerald, who wondered why Ireland might have some difficulty with it. We have difficulties with it because representatives of trade unions and management, who were observers at the convention, believe that social partnership should be limited entirely to representatives of trade unions and employers. The Minister of State, Deputy Roche, pointed out that Ireland's model of social partnership, which includes other interests, such as non-governmental organisations, civil society, farmers, etc., is a far more useful model. That is the reason we kicked up a certain hullabaloo over it. We did not win the argument and the representatives reiterated their idea of how it should operate at the last plenary meeting. There may well be turf-war issues to be resolved among the social partners attending the convention. That view has been offered as an explanation for the limited form of social partnership that has been adopted. It may not be possible to address each question in detail, but I would welcome a broad reflection on some of the issues I have raised.

Deputy J. O’Keeffe

I read in the IrishIndependent today that more than 1,000 amendments had been tabled to the first 15 articles. Given that there are 116 articles, one can imagine the quagmire the convention will get into. What will be the likely time frame for this process given that this many amendments have been tabled already? What weight will the convention’s final text have with the Governments at the Intergovernmental Conference? Will it be compelling, or will the Governments feel they can treat it as a consultative document?

Fundamental rights are of considerable relevance to us. We were one of the first States in Europe to establish certain rights in our Constitution. Apart from these, we have the additional rights derived from Supreme Court decisions as well as the provisions of the European Convention on Human Rights which this House is presently incorporating into domestic law through a process with which I do not fully agree. That is not a matter for discussion here. We are now presented with a Charter of Fundamental Rights which will have to be incorporated into our treaties and there is also a proposal to have the EU accede to the Convention on Human Rights, a process Gerard Hogan wrote about recently in The Irish Times. The Good Friday Agreement contains a commitment to an all-Ireland charter of rights which is to be worked out by a human rights commissioner here and a sister body in Northern Ireland. How will all this work out at EU level and where will we find ourselves in terms of rights here? Will there be a huge amount of competition in this area? Has the institute done any work on this thicket apart from its paper on the Charter of Fundamental Rights?

Deputy Quinn

I welcome friends and colleagues from the IEA whom I thank for the work they have done and for the paper before us. We have a long road to travel.

I am not a trained lawyer, which could be seen as a handicap or a benefit, and I cannot understand where the interface will be in terms of what is written on pages 12 and 13 of the institute's document. I am in favour of incorporating the Charter of Fundamental Rights in the constitutional treaty. I am in favour of making it justiciable, which is a position Fianna Fáil has come to reluctantly. I heard former-Deputy Des O'Malley articulate a neo-liberal position on this and he was supported by former Attorney General, Michael O'Kennedy. I understand the conservative reservation about providing courts with the power to enforce social and economic rights, but I do not understand how this will only apply to European law. The practice here has always been to transpose into domestic law directives initiated in the Commission while using the process to add provisions we wished to put on the Statute Book. Is the legislation which gives these provisions effect justiciable under the Charter of Fundamental Human Rights, or just those parts of it which include the content of the directive? Even though this treaty is a rationalisation of what is already there, selling this treaty will not be easy for a host of domestic reasons. We must offer Irish citizens something in terms of extra rights or the reinforcement of rights opportunity. I have failed to follow the conclusions of the impact of transposing the charter into the constitutional treaty.

Deputy Mulcahy

I join other members in extending a welcome to the representatives of the Institute of European Affairs. The work it does is most valuable and I thank representatives for the paperwork they submitted in advance of this meeting.

After the Intergovernmental Conference, this matter will come down to a referendum in which people will be asked to change existing treaties and alter their constitutional provisions. Before they are asked to do that, they must be fully informed as to why a new constitution is necessary and told what is in it for them. Does the institute have any ideas of how they can be informed during the process, rather than have them presented with a fait accompli? People should be made to feel part of the process, rather than its receiving end.

The point made by Alan Dukes is an interesting one in terms of the debate in this committee on the constitutional articles. Thousands of amendments have been tabled and we will see how the Presidium is to deal with them. Should this committee debate the treaty on an article by article basis in terms of the views of the IEA, trades unions, the Government and pressure groups? Certain people wish to see the word "federal" included in the constitution, but others do not. Perhaps different members of the convention attach different meanings to it and we need to tease out this confusion in a structured manner. The question of how to proceed is difficult and complex. I would like to hear the institute's ideas on how the debate can be addressed in the Oireachtas.

Deputy Haughey

I thank the Institute for European Affairs for today's briefing and its ongoing communication with us. In this regard, I am particularly grateful for the invitation to attend the state of the union address last month. By facilitating the Minister on that occasion, all those who attended emerged much the wiser as to the Government's position on the future of Europe.

The intergovernmental conference will ultimately decide on the contents of the treaty. What contentious issues are likely to be left over to the intergovernmental conference? My second question relates to a recent pronouncement by President Jacques Chirac on the applicant states and the common position they reached on Iraq in which he is reported to have referred to the countries in question as being childish. This is an unwelcome development. The equality of nations within the European Union is one of its basic and fundamental principles. In light of the president's pronouncement, do the witnesses believe this fundamental principle of equality among nation states will come under threat as the work of the convention evolves?

Other speakers have referred to the fact that we will have a referendum on the constitutional issue in due course. Is the Institute of European Affairs preparing for that eventuality? Does it intend to get involved in such a referendum by debating the various issues? In particular, does Dr. FitzGerald whose involvement in the previous referendum was most helpful, intend to get involved?

Senator Quinn

I do not propose to delay the witnesses. I was impressed by Dr. FitzGerald's comments on differentiation. He referred to the values and objectives of the European Union and stated he was anxious to ensure Europe differentiates itself from other parts of the world in certain respects.

The possibility of inserting a reference to a supreme being in a future constitution, which was raised some months ago, appears to have withered away in the meantime. I remind those of us who assume a separation of church and State will definitely take place in this country that coins in the United States still bear the inscription, "In God we trust", yet the country has still managed to survive for 200 years. Has it been suggested that the separation of church and State, as enshrined in practically every national constitution in the European Union, be incorporated in the proposed constitution? Has progress been made in this context at the convention and will the body eventually express a view on the matter?

Deputy Sexton

Since my appointment to the committee, I have listened to presentations by many eminent people, including the witnesses whom I thank for their contributions. Having briefly read the material they supplied on the implications of the convention for Ireland, I find myself returning to the question I asked at our initial meeting, namely, where will the proposed constitution leave the citizen? While the contributions of the various eminent people, among them the members of the Institute of European Affairs, have been very helpful, they are clearly not sufficient.

Having listened to other Members speak, it is clear we are still very confused by the complex issues which have been raised. The convention is still moving too fast for us to keep up. The briefing contains a provisional timetable for the presentation of the treaty, according to which the final draft will be presented in June in Thessaloniki. I am concerned citizens are being left behind by the pace of events.

I could not agree more with the argument in the briefing paper that the necessary information should be made available. Bodies such as the Institute of European Affairs should assume this role. Although we do our best in this respect, the general public is cynical about sources of information. While it is vital we, as politicians, play our part, the institute and similar organisations can offer the general public much more persuasive arguments. In what areas are resources needed?

With around 1,000 amendments having already been submitted to the first 16 articles of the draft constitution and more likely to come, the mind boggles at the possibility of any kind of middle ground being found. After the Nice treaty referendums we need to be extremely careful. Although we cannot stop the process, we can influence it by taking action now, even if many people would consider that premature. Otherwise, we will all be accused of having left thecitizen behind.

Chairman

The Chair would like to put a few questions before we proceed to have exchanges. Do the witnesses agree that maintaining the institutional balance and the balance between the institutions and the member states is the most important objective of the convention? Have they considered what will happen to the current, highly sensitive protocols, including, for example, the protocol on abortion, which is very sensitive for Ireland? If the convention on rights was to conflict with this protocol agreed after careful negotiations and on which a vote was taken, how would our position be protected?

I turn to a small issue which is part of the bigger question. I find it hard to envisage how the constitution being discussed will endure for 30, 40 or 50 years if certain issues are not addressed. Having been a member of the reflection group right up to the conclusion of the Amsterdam treaty, I am aware of the difficulties that arise from the common travel area and the Schengen agreement. It would be easier to sell the idea of Schengen if, for example, we were allowed to travel throughout the European Union on a lesser document than a passport.

Deputy Quinn

That is already the case.

Chairman

The Deputy should inform the authorities in Gatwick Airport of that. When one makes this proposal, one is accused of wanting to introduce an identity card system. I am not in favour of such a system as it would lead to cases of, for example, young people from Fatima Mansions being asked by name for their identity cards. There would be no point in introducing such a system. However, those of us who drive could use our driving licenses for this purpose, particularly in view of the fact that they are about to be reduced to the size of a credit card. In effect, we will continue to be foreigners in other parts of the European Union for as long as we must travel on a passport.

Defence is a much more significant question, particularly if the proposed constitution is set to last for several decades. I am not sure I agree with the institute's views on collective defence. On the question of a solidarity clause, its presentation states:

A new clause would also indicate clearly what distinguishes the European Union from a military alliance, in that the solidarity clause will not be a clause on collective defence entailing an obligation to provide military assistance. This would be helpful from an Irish perspective.

It then addresses the question of article 5 of a possible protocol, a matter dear to my own heart as I have been arguing in favour of such a measure for years. If we are to have a constitution for Europe which will not be revisited for decades, why are we not arguing for a common defence designed in part by ourselves? In that way, we would not only become part of the architecture but are one of the architects. Due to the lack of debate on the issue, my fear is that these rules will be made, just like the rules on economic and monetary union, and that if and when we join later we will do so according to the rules of others.

If the article 5 Western European Union commitment were a protocol to some new treaty we would be well on the road to bringing about the sort of security and defence umbrella Europe needs. I may be entirely on my own in this but I believe we are the most vulnerable member state in the whole of the Union because we are not part of an alliance and we have not equipped our Defence Forces to defend the State adequately in the event of attack. If this is truly a treaty for 40 or 50 years, then why is this issue not being addressed and why are we not being more proactive in putting ideas forward? I also include the Institute of European Affairs in this regard.

I want to make two other brief points. We give right of audience to members of the European Parliament and we usually meet on Mondays and Fridays when we always have a pretty good attendance. The Treaty of Amsterdam protocol is a very welcome one and we have started to take our role very seriously in that regard. I believe it would help if the nominee of each speaker, whether it is the chairman of the national European affairs committee, or the member at COSAC, or whoever it happens to be, had right of audience in the European Parliament from time to time to raise issues of concern to national parliaments, just as we give access to MEPs to come here. This would not require any new institutional arrangements and, in my view, would address some of the concerns about the democratic deficit.

If the three pillars are to be merged, what is to be the role of the court of justice? Will its role be extended, or is it capable of being extended by the court to all three pillars?

Dr. FitzGerald

I will try to answer some of the questions, but I do not think I will manage all of them. My colleagues can come in on the ones with which I cannot cope. I should have said at the beginning that the role of the people representing us there has been very well fulfilled. We are very well represented by the Minister of State and the other representatives and the alternates. For the first few months they were all inhibited by not wanting to get involved in things that might affect the referendum here and that may have slowed things down but that process is working very well. Some of the questions raised issues that I do not think we have adequately considered. One of the useful things about such a process is that we can go away and do some more work.

In regard to the idea of a team presidency, no one has put forward proposals as to how this should be organised. I think there is some notion that it might last for a period of two years and might involve three or four states at a time giving a balance geographically and also perhaps between large and small states but as to what formula is used to achieve that, I do not know. It has not been discussed and perhaps some thought could be given to it, to put forward some constructive proposals. The European Council could either nominate or approve. If it nominates, that could narrow down the election significantly. If it has to approve afterwards, it is not unreasonable that it should have a right to say that it does not think a decision is the right one, but whether it actually does so, in terms of the Parliament, is another day's work. The question of nominations is important and it is a pity that not much discussion has taken place on it.

I was very interested to hear the views in regard to social partnership. In 1981 or 1983, I tried to introduce a youth element into our NESC and the immediate reaction I got was that they could not be social partners. It was acceptable to have one or two representatives but I think one of them was thrown out afterwards, although I may be wrong about that. There is nothing new or surprising in that attitude. I think we are right to press the issue and if we have been shot down so far, then another opportunity may arise to press it again. I think our formula is a better one.

There are really very few amendments. There are 105 politicians present and there are 16 articles which makes a possible 1,680 amendments with which to start and to get it down to 1,008 is quite remarkable. It does pose a very serious problem and a danger, because given that each of these sections is to be discussed at a two day meeting of the Convention, it is quite unlikely that over 1,000 amendments can be discussed. Our own very efficient Dáil could not quite manage that nor will this group. The only logical way to cope with that is that the praesidium will put the amendments together in some ordered way and that is a process which we all know - be it at party conferences or anywhere else - can lead to some things disappearing or turning up in a different form. I am nervous about that aspect.

Mr. Dukes

Not looking at anyone in particular.

Dr. FitzGerald

No. I am looking all around the room on that point.

Deputy O’Keeffe

Dr. FitzGerald is looking at a few experts.

Dr. FitzGerald

This is a real problem and we do not yet know what is going to happen but I would be worried about what might come out the far end. There are so many good amendments that might disappear in the process. The timetable is tight and there is great determination to hang onto it. That gives the praesidium great power to push things through, which is a worry.

We do not know at this stage what will be the outstanding issues in the Intergovernmental Conference. It is too soon to say what is likely to emerge as not agreed but we have seen disagreements in the economic committee on the issue of the extent of the role of the Commission in regard to national budgets and so on. It is my belief that we have a strong interest in having a very orderly system with a good deal of intervention to stop it going wrong - but not everybody agrees with that here.

Although the social working group was established very late, and in a difficult area, it seemed to come up with quite a good report but there are still outstanding issues such as social partnership in this area. Other areas on which there is not yet agreement could include aspects of defence such as the CFSP but it is too soon to say, as we have not even had a debate on the first set of articles. We must wait and see what will emerge as an area of disagreement of sufficient importance that it must be addressed at an Intergovernmental Conference. That is another day's work.

On the other hand, if there is substantial agreement that will mean by definition, given that all governments are represented, that everyone is willing to live with such an area. I do not see that there will be much enthusiasm for re-opening issues that have been agreed, given everyone's presence at the table. It is really a question of what will be the areas of disagreement and how these issues will be resolved and how important they will be.

It never struck me on the issue of fundamental rights that we add things in and the process of how the court will deal with that. It is an interesting point to which we have not given much thought and which we should examine further.

Deputy Quinn

Dr. FitzGerald would recognise that in the normal legislative practice that domestic Departments have added on their own pet projects to a train that originated in Brussels.

Dr. FitzGerald

Yes. I had not thought about that. I suppose the answer, in principle, is that only the elements that are justiciable in the European context shall be accepted in court, but digging them out or distinguishing them could be difficult. That is an interesting point.

Deputy O’Keeffe

Will it be Luxembourg or Strasbourg? If we accede to the convention, the court is in Strasbourg.

Dr. FitzGerald

The charter is our European Union charter.

Deputy O’Keeffe

We are also acceding to the European convention.

Dr. FitzGerald

This is a difficult area and I am not qualified to deal with it. We have experts working with us who have to look at these issues further and report back. I hope that the reports will soon be published and available on the Internet. The reports will deal with these issues in much more detail. On the other hand, the Community is going to accede to the Convention on Human Rights. I always thought that should be done and that it should be a judge there so that when Community issues come up, the detail of what is involved can be explained. We are acceding to it also so that area is sorting itself out. The charter is only to apply to aspects of European law. It is closely based on, although not identical to, the convention. It is a highly technical area and if people wish to address this in more detail we will do so. We can hopefully be of more assistance in this area but I am not personally an expert on law, or perhaps anything else in these matters.

Deputy Haughey referred to legal drafting issues. I have dealt with this point in part. Did I miss some point?

Deputy Haughey

That was not my point. What is the position on equality between nation states?

Dr. FitzGerald

There is always a problem when changes cannot be made in the existing arrangements in the Community. Naturally, large countries want to play a bigger role than they can. The Community was designed to prevent them from doing so and therefore they are, in a sense, permanently frustrated. They are inclined to take any opportunity to increase their role, which occurred in 1975 during the establishment of the European Council. I and others had to fight quite a battle to prevent it taking a form that would have been disadvantageous to small countries. We managed to win the battle at the time but it was bound to arise again.

Large states and other states sometimes get frustrated if the Commission is not working well. Some Commissions are better than others, and if it is felt that a particular one is not very effective, states feel they should play a bigger role. There is often a practical motivation in addition to their wanting to have more power. Undoubtedly, we have to be vigilant regarding any attempt to change the balance against the Commission in favour of states. The Presidency of the Council is clearly a potential danger in that respect and we should not be in doubt about this. The larger countries have come together regarding this point and we must guard against it.

What was striking about the Nice treaty was the extent to which smaller countries managed to retain their positions and were not disadvantaged, although that was not always recognised by some people here. However, there are dangers and it is correct to raise the issue.

As regards equality, we are all equal in a technical sense, but not in terms of our voting rights. Even within this system, larger countries can push small countries around a bit more than smaller ones can push around the larger ones, which is inevitable. We are well protected by the existing structure and we must ensure that nothing happens to undermine it.

A Deputy asked about the national referendum debate. We are ahead in this respect. He asked how we can be sure that people are well informed. The survey on the last referendum suggests that the media are crucially important. Although I have not time to examine all the calculations, some of which are very complicated, it looks as if it the survey is more important than some done by others. I suspect there are more forces involved than the media. Certainly, the fact that there was a referendum campaign made a difference, as compared to the previous referendum, and therefore one cannot say the media are fully responsible. However, they can play their part only if there is a campaign on which to report.

It is a matter of great concern that the convention and its activities are not being reported by our media. Given that our future is being determined by our own representatives and others, working together in a unique operation, it is astonishing that we do not have constant reports and articles on what is happening. I do not know what can be done about this because there are never positive results if politicians tell the media what to do. Nonetheless, I hope there will be much more media scrutiny in the months ahead. When the referendum campaign takes place, the media will then play their role, as they did on the last occasion. My own involvement will depend on when it is and whether I am here. If I am here I do not think anybody will be able to stop me.

The issue of the supreme being has been raised in some form in Italy and other countries. There will be hesitation about bringing in a religious element. If references to the supreme being are Christian in nature, the Jews and Muslims will be concerned, and if one speaks about Judaeo-Christian values, one is still not including the Muslims. There are countries in Europe which have a pretty strong secular tradition and we have been happy with that.

Chairman

A reference to Abrahamic values might cover everything.

Dr. FitzGerald

That is a very good suggestion. I am not sure what decision will be made in respect of the issue of the supreme being. Yet, what distinguishes Europe from other parts of the world is the set of values it has inherited, which are Judaeo-Christian in spirit. Even people who are not believers in any sense are simply operating under that schema. However, we must await to see what happens.

Because the convention is one of politicians representing people, there is much more concern about the relationship between the European institutions and the people than existed when mere Governments were responsible. Some of the changes proposed are very positive in this regard. However, it is not easy to make the direct link between citizens and the institutions unless one adopts the idea, for example, of the President being elected by all the people in Europe. Deputy John Bruton has suggested that but it has not received much support. We shall come to that in due course. The relationship between Europe and its citizens is always a problem and is bound to be. That the European Parliament does not command considerable interest in and electoral support for its elections in Ireland suggests that it is difficult to establish a link.

There was a reference to resources, which I did not fully understand. It is a matter of concern that some of our representatives have not been resourced as well or as quickly as they ought to have been, and some are still not resourced adequately. When one of our full representatives is present, the deputy or alternate is not allowed be there. Those in charge of finance will not pay. It is extraordinary that one cannot have one's assistant with one.

The alternates have had some problems with the financing of their work and the assistance they get is limited. It is astonishing that our Parliament and Government should allow limitations to be put on full representation of our interests in Europe - that is a personal view as the institute has not yet discussed the matter. However, because the point was raised I felt I had to respond to it.

The Chairman raised the point of additional protocols and I am glad he has done so. We did not think of it, but I presume that any protocols that are still valid and which people want, perhaps relating to past events, will be added. We must examine this issue. As the Chairman said, keeping the balance is a crucial point, on which all our delegates are working as hard as possible.

The Chairman asked if the constitution is for 30 or 40 years. It is and it is not. It is in the sense that we all feel that, if we are to have one, we should have one that will last. We all know some changes will be required in the future. The Minister's speech to the IEA incorporated both the 30 to 40 year concept, which implicates several generations, and the possibility of changing it subsequently. I do not think he thought it through any more than the rest of us, but the aim is to have a constitution that will last as long as possible.

I understand the Chairman's point of view on the broad defence issue. I might share it personally but Government and Parliament have to decide what they want. Given the opinion of the public, there has been a reticence on the part of all Governments in pressing some of the issues in question. I am thankful that movement in the direction the Chairman suggests involves a political decision on which somebody else has to decide, not the institute, thank God.

I have covered the main points, but I might have missed some and others may like to take them up.

Ms Brigid Laffan

I will not take the questions in sequence because Dr. FitzGerald has covered all the ground. The convention will determine, in large measure, the way in which the Intergovernmental Conference is framed. It will be extremely difficult for Governments to unravel the broad agenda that will emerge from the convention. The convention process is extremely important and will have a legitimacy of its own. Contentious issues will arise and I think the institutional ones will be in this category. We should be in no doubt that what emerges at Thessaloniki in June will largely frame the way in which the Governments will approach the issue. This is not a preparatory phase or a phoney war but involves the shaping of a constitutional treaty for Europe. Therefore, it is extremely important.

The Chairman is correct in saying the institutional balance is critical, but maintaining this does not just involve formal relationships between institutions. Members should think about what a Council of Ministers will look like with 25 member states with three members per delegation - the chair will not be able to catch the eye of delegates of people at the other end of the room. The dynamics of negotiations in the EU are going to change and informal changes are as important as formal changes. We need to think about how assemblies and forums work as decision-making institutions and not just formal meetings.

The relationship between the president of Council and the president of the Commission is the key institutional question. There will be a mess if the EU opts for the Franco-German proposal to put in place a dual head, namely, the German president of the Commission and French president of the Council. This will institutionalise in the EU the cohabitation problem of the Fifth Republic. The Irish representatives to the convention and our negotiators need to be extremely careful on the designated role. There is no doubt that the existing presidency system cannot be sustained. It cannot be sustained because there is insufficient continuity and the Council is not working as a coherent whole. I am not sure how team presidencies work given the linguistic and style differences across administrations. It will be a wonderful experiment in creating a European public administration culture. It will be a challenge but it is the only way to go.

There are three issues about the citizen. There is the question of what the new constitution will do for citizens, the opportunities it will give citizens to participate and how citizens will respond to it. The response of citizens matters in this jurisdiction because we will hold a referendum on the issue. The ratification of this constitutional treaty is in the hands of the people. It would be wrong to hold off on informing and deliberating with the electorate until the Intergovernmental Conference delivers a constitutional treaty. One of the great things about the Nice treaty referenda was the engagement of the people. The level of knowledge of Europe of the citizen increased dramatically. Richard Sinnott has analysed the referendum result and suggested that people took their cue from the media. The media is simply a transmission belt, albeit an influential one, and only responds to the deliberations that are going on. Had there not been a campaign the media would not have had anything to report. There is an issue of information and education that goes back to domestic education policy. We must accept that Europe is not something that is out there but is part of how we govern ourselves as a modern democracy and we need to take it seriously.

I am disappointed about the role of the citizen arising from this treaty. The chapter on the democratic life of the union is arid and insubstantial. Europe's political leaders have been extraordinarily experimental with economics. While the Single Market and the euro are examples of huge experiments in economic governance the political leaders will not take risks with politics. They like to think politics is in the hands of governments in cosy places around national cabinet tables. I am not overwhelmed by what this means in political terms.

There are many technical esoteric issues around fundamental rights but we are all privileged to live in a part of the world where our rights are copperfastened at many different levels; would that it were the case in other parts of the globe.

Mr. Dukes

Both Dr. FitzGerald and Professor Laffan have emphasised the centrality of the structures of the presidency of the EU. This is an area where we intend to conduct a much deeper study to set up pointers to enable us to assess the merits and demerits of the different proposals and ask how best they can serve the interests of the EU and Ireland. Deputy O'Keeffe raised the question of the interplay between the affirmations of rights at various levels such as the Constitution, the European Convention, EU accession and the Good Friday Agreement. A study could also be carried out in this area to track the various influences and establish what the final result is likely to be.

In response to Deputy Sexton, the institute wants to nourish the debate as much as possible. We publish a regular convention watch that updates readers on what is happening at the convention. Every Member of the Oireachtas receives a copy of this. Let us know if we can help by giving Members more copies as we would be delighted to do that. Every Member of the Oireachtas is invited to the series of seminars and debates we run. We do not have the resources or the mission to be a mass contact organisation but we are more than happy to give information to those who are involved in mass contact.

The Chairman raised the issue of what the Irish view might be for participation in defence. I refer him to the paragraph on page 22 of the document. We raise the question of Ireland agreeing to an opt-in protocol. This has been mooted and Ireland could agree to the inclusion of such a protocol. There is no difficulty of agreeing to the inclusion of the protocol, but availing of it is a different issue that would require a referendum. I have been in a grossly heretical frame of mind on these issues for many years.

Dr. FitzGerald

As have I for 54 years.

Mr. Dukes

At this stage of my life I have to keep my heresies to myself.

Chairman

The additional clause in the second Nice treaty referendum specifically stated that there would be a referendum if Ireland was to join a common defence. It is clear that a referendum will be held on this treaty. I find it hard to see this as a constitution for 50 years if some fundamental issues are not being addressed.

Deputy Quinn

I am fast-forwarding to the point where we will be knocking on doors and persuading people to vote. As a serving politician I am focused on what we will be telling people. Why should they vote "Yes" to this rationalisation of the treaties that maintains the balance while recognising increasing the number alters the balance thus requiring a rebalancing that maintains the same weightings? What is in it for Joe and Mary Soap? Unlike the Maastricht treaty that was about £8 billion and had nothing to do with the single currency, this is a more difficult task. Whatever our political points of view may be, conveying this to people in a prevailing mood of scepticism and cynicism, as Deputy Sexton alluded to, is a critical point. The Treaty of Rome talks about an ever-closer union. That is a wonderful departure point for a long intellectual and spiritual journey, but it gives no indication where is the final destination. We must be able to tell our citizens where Europe ends, where the border between ourselves and the Ukraine lies and what Europe will look like when it is finished. I accept that part of the project is about this, but I ask the witnesses to help us, through their latest studies, because we will be knocking on doors, providing people with an image of Europe's future and asking them to buy into it.

Unless existing, unified states separate, the new Europe will, by my calculations, consist of 35 members, including the Balkan states, Switzerland, Iceland and Norway. It will not, however, include Moldova, Belarus or the Ukraine. Can we say that, show people the map and ask them to buy into this, while assuring them of what the Legislatures in Brussels, Dublin and, for example, Cork County Council will do and that it will last for 50 years? Will we be in a position to inform them that there will be a certainty to the Union and that they can now get on with the rest of their lives? If now, I will have difficulty selling this in my constituency - which is fairly pro-European - because there is resentment about the concept of Europe getting further away. I do not know if our guests share that analysis. If they do, what do they think we should do and what can they do to help?

Chairman

We have not yet touched on the question about the European Court of Justice and the other three pillars - if they are merged - but perhaps we cannot yet answer that.

There needs to be a greater willingness on our part to indicate why this process - which began with the coal and steel community - got under way. If we are to leave out any European democracy that would otherwise qualify for membership, I suspect it would be a recipe for disintegration or at least for trouble on the doorstep of Europe. The objective is to create peace and stability - the prerequisites for prosperity - in Europe. We are talking about an integrated rather than an assimilated Europe and, therefore, it must be open to all democracies. Perhaps there are more Russians in Europe than Turks - there is a Turkish application on the table - but the question is how we govern this.

Some time ago I read Winston Churchill's views on these matters towards the end of the Second World War. He had an idea of a united Europe, a council of Europe or something along the lines of what is now evolving as opposed to the Council of Europe as we know it. He foresaw a regional government - based on the Danube, the Baltic and Balkan states, Scandinavia and the low countries - which is an interesting idea. We should not be afraid of the size of Europe, we should address the question of how it will be governed, how peace and stability are kept and how it is integrated. Membership of the EU has risen from six to 15 and is about to expand to 25. If it increases to 30 or 35, our job will be to prepare for that rather than pull up the ladder. I agree with Deputy Quinn that it is difficult to explain to one's constituents, but, in time, that might be the challenge. Having reached a figure of 25 members states, we may want to decide what we need to do next. We may have to change the way we think about the way in which we intend to enlarge the Union.

Would any of the IEA members like to make some concluding comments?

Mr. Hourigan

Deputy Quinn made some observations about an ever closer union, which wraps up and encapsulates much of the debate. Like those of my colleagues, my opinion has been flavoured, where necessary, by personal feelings. My sense of the importance of the Convention process and the imminent Intergovernmental Conference is that we have reached a stage of finality. Professor Laffan has often observed that there is an Intergovernmental Conference fatigue inside the EU as a whole and referendum fatigue among the Irish electorate. Historians looking at the development of the EU over the last 20 years will see it as a continuum, beginning around 1984 with the Albert and Ball report on the European Parliament, which sparked off the Dooge committee, which, in turn, led to the introduction of Single European Act. Dr. FitzGerald played a signal role in respect of the latter.

Since then, each Intergovernmental Conference has necessitated a subsequent one. We have reached a point at which we can see its shape in terms of the institutions and competences. The question of competences is critical. They are the most important litmus test by which I will judge what the EU is after the forthcoming convention and Intergovernmental Conference and opinion has clearly settled on that matter. There are differences in the detail, but it is possible for politicians in a process to know where it is going before it is cast in a legal text. At this stage, it is clear that, whatever the ambition of Monnet and others 50 years ago in terms of creating some sort of federal union, it is no longer operative and will not be for the next 20, 30 or 40 years.

In terms of the nature of the Union, we can talk in concrete terms, so people's fears of it becoming an ever-unfolding process, leading ever-deeper into something that remains constantly unknown can be set aside. Equally, by a wonderful historical coincidence, in the same 20 year period we have become able to define Europe geographically. Deputy Quinn's idea that there is probably a limit of around 35 states would coincide with my own - but it is a personal observation. I disagree with him about Moldova, but perhaps only the Moldovans think that important.

The enlarged Union is changing the geo-political framework in terms of our relationships, in particular, with Russia. What is happening on the Security Council with Russia vis-à-vis Iraq, with France and Germany on the same side is a foretaste of what is to come. One of the great achievements of the EU over the next 25 years will be to create a European order in which the Russian Federation is part of a secure and stable relationship, without being a constituent part of the European Union - a partner. It is within our own sphere of influence and these countries are satellites - although given its historical connotations the Ukraine might not like to be called that.

The forthcoming referendum debate will be different in the sense that one can provide a clear backdrop to the debate. The allegation that this process over 50 years was leading inexorably to a super-state is being laid to rest by the experience of those who are in the Convention and who will be at the Intergovernmental Conference. That charge has been the font of much euro-scepticism, mainly emanating from the neighbouring island, which, unfortunately, because of the common language has had an inordinate influence on debate here, even among those who regard themselves as the most advanced and sophisticated Irish Nationalists. They have been unwittingly parroting what has been coming from the other island and that will not go away.

In the debate, one of the key issues is legitimacy. Of all the member states, we have the greatest claim to inject this issue into the debate, but we are not doing so to the extent we should. We are the referendum country par excellence. Every stage of the process has had to be validated by the people, which is a powerful political factor. I refer the committee to chapter two of our 1996 report on the Intergovernmental Conference, which deals with the issue of consent. The role of national parliaments is critical. National parliaments have themselves been failing, if I may say so, in the intellectual challenge put to them. After all, it has been on the agenda since before Nice. The only truly innovative, imaginative proposal that has been put forward in this matter has been from Ireland, through the Minister of State at the Department of Foreign Affairs, Deputy Roche, regarding the election of Commission presidents. The proposal related to a joint electoral college encompassing European and national parliamentarians. As a former general secretary of a party - of which Deputy Quinn was once the leader - which itself is a member of a large family of political parties, I could see how that would have an astonishing effect on day-to-day meaningful contracts. Surely there is a role for national parliaments in the pre-legislative phase, not in the post-legislative phase. There is no point in looking at secondary legislation by way of statutory instruments.

Chairman

This has been going on since October.

Mr. Hourigan

There is a chance here for people to excite us with the quality and imagination of their contributions.

Chairman

On that public split in the Labour Party over Moldova, I will bring proceedings to a close. We meet again on Monday next at 11.00 a.m. to meet members of the convention. The institute might have a look at the 200 draft regulations and directives looked at by this committee in the form of the sub-committee on scrutiny. We meet once every two weeks and have done since October. We are proactive, with rules laid down, and it is working quite well.

Mr. Dukes

We are firm believers in subsidiarity now.

Chairman

It might be an interesting study.

I thank Dr. Garret FitzGerald, Professor Brigid Laffan, Mr. Alan Dukes, Ms Jill O'Donoghue and Mr. Brendan Hourigan. I hope they found the questions and the points made of interest. We certainly found the presentation interesting. It is through exchanges such as these that the issues become clearer and more transparent.

The joint committee adjourned at 3.55 p.m. until 11 a.m. on Monday, 3 March 2003.