Thank you Chairman. I am delighted to be here at the joint committee. As the Chairman said, there is a situation where the first 16 articles of the new constitution have been discussed in plenary session. There have been more than 1,100 amendments put forward. We also have the draft of the next set of articles and they are being examined. It might be helpful for the joint committee if I took the first 16 articles, the amendments proposed and then comment on them. The plenary session was devoted to the draft Articles 1 to 16. Three interventions were made by the Government and these were significant. Given that speakers were allowed only two minutes each to intervene in the different sections of the discussion, the predictable approach was adopted - to stick to the lines from written submissions. It is questionable how much was achieved by the plenary session as the points made were simply reiterations of primary concerns that had been already been submitted in writing.
No formal decisions were reached in the session. There was a mistaken impression, and some press commentary, that final decisions were being reached and votes being taken. That illustrated to me an ignorance of how the convention works. What the convention was doing on this occasion was getting a feeling for the relevance and importance of the amendments that had been proposed. There will be a further special debate on the articles on Wednesdays 5 and 26 March. These further plenary sessions were organised to accommodate speakers who did not make it on the last schedule. It also provides the opportunity to reiterate specific points. The Presidium will not bring forward amended texts as a result of these discussions until it circulates the full draft treaty in May. This is important, as there is a tendency for people to mistake how the process is moving forward. What is happening is that the Convention is giving its views on the Presidium's drafts. The Presidium will then redraft the final text and in turn this will be discussed and there will be an opportunity to make inputs.
In my interventions I stressed that though there were no fundamental difficulties with the drafts, the Irish amendments were aimed primarily at creating greater precision and clarity. I used the point that there is a tendency among Europeans to write in a certain lyrical way. However, a constitutional treaty must be written precisely and must have legal meaning and it cannot wander too far from the traditional type of drafts we are more used to. The basic structure of the text was not queried or the broad approach taken. Our argument was for the need for greater clarity.
There was considerable discussion as to how the nature of the Union should be described. I will add that there is no dispute over the name. Both I and Deputy Carey made the point that the name European Union is accepted not just by the citizens of Ireland but by Europe as a whole. It is well-established and we saw no point in discussing any alternative. The majority of speakers who dealt with Article 1 and the controversial use of the word "federal", felt that the phrase "the Community shall administer certain common competences on a federal basis" was acceptable and should be retained. I have told the joint committee that if the construction of the clause is examined, it describes the process by which certain decisions are made. The Government suggested that a neater and tidier approach to Article 1 would be to put a full stop at the end of the phrase that outlines the name of the Union. Therefore Article 1 should read as follows, "Reflecting the will of the peoples in the states of Europe to build a common future, this Constitution establishes a Union, a European Union". The Government does not see the point in the second phrase which has caused difficulties in some states. A number of the contributors did want to use the term "ever closer Union", which the Chairman will be aware, is a phrase that appears on a number of occasions in the treaty since the start. At the same time, a number of speakers indicated that, particularly with regard to the new states of Eastern Europe, the phrase "federal" should not appear. There is a polarity of views on this. They can be summarised as follows. The UK Government had a difficulty with the use of the term. The Irish Government suggested that the first paragraph could be presented more neatly by putting a full stop after the title of the Union. A significant number of Eastern and Central European contributors were offended by the term. Mr. Giscard d'Estaing, President of the convention, made it clear that use of the word "federal" was not intended to say Europe was a federal state. He has said this time and time again, and I can understand his degree of frustration. He believes there has been a misrepresentation of the use of this "federal". Rather he is saying, in areas such as common currency, Community decision-making can be described as a federal process. It is a fine distinction but when the first 16 articles were launched, it struck me as something that people should not get over-excited about. The debate that has taken place has consolidated views on the issue. With somewhat greater balance the first article could be amended in the way I have proposed and have circulated to the joint committee.
There was also considerable debate on the invocatio Dei and the question of reference to Europe’s religious heritage in the Constitution. There was strong debate on this issue. Many of those who held the view that there should not be a reference, made contributions, that I felt, were intemperate. I would support an appropriate wording but, at the same time, consensus will have to reached on this issue. Mr. Giscard d’Estaing clearly indicated at the outset of the debate during the earlier plenary sessions that the appropriate location for an invocatio Dei or some form of reference to European cultural traditions would be in the preamble of the treaty.
On fundamental rights, the debate confirmed overwhelming support for their incorporation into the treaty. At the same time, there is an understanding of our view, which is shared by a number of countries, that the manner in which the charter is incorporated in the treaty must not be seen as a sort of back door way of giving the EU extra powers or increasing in some obscure way the competences of the EU.
The convention's remit has always been not to extend the EU's competences, so it is important that the manner in which the charter is incorporated should not have such an outcome. It is accepted that the improvements recommended by the working group for the so-called "horizontal clauses" - the final four articles - must be carried through. It is critically important that the manner in which the charter is incorporated into the constitutional treaty makes it clear that first, the charter applies only to the EU or to the member states in their operation of European law. Second, it is essential that the horizontal clauses, which make it quite explicit as to how the charter is to be applied, be carried. Furthermore, there must be a reference to the commentary which was agreed by the convention which itself drew up the charter.
For those reasons, in the interests of producing a clear and readable constitution, the appropriate place for the charter is in a protocol. People have argued that putting it into a protocol might somehow diminish the charter, but that is patent nonsense. European treaty law makes it clear that the incorporation of the protocol has an equal effect in law. Our argument for putting the charter into a protocol is not to diminish it, but to allow the opportunity to contain the charter and to make reference to the horizontal clauses and the commentary. That is important in terms of clarity and presentation. After all, the treaty in Mr. Giscard d'Estaing's words is to be a "relatively slim document" which - again in Mr. Giscard dEstaings words - "a person with second-level education can pick up and read".
If one actually imports an additional 54 articles into a treaty which already has close to 50 articles, adds a commentary and expects people to read the horizontal clauses, along with the cross-references, then one will not have a legible treaty. Our interest as a Government is in making a treaty which we can present to the public as both readable and understandable. Other states should take a similar view.
In relation to Articles 8 to 16 regarding the EU's competences, there is a shared view that this complex and important section must be as clear as possible, and legally exact. There has been an inaccurate suggestion that we have proposed a restrictive view in this regard. In the Government's suggestions on the EU's objectives we want to make it clear - and we did this in the working group as well - that clarity and legal precision is required. There is a tendency, for the best of reasons, among some of those in the convention to push for a lyrical document with very broad references. The Government feels that a much closer formulation is to be found in the UN process, and has put forward an amendment to Articles 3-4, as follows:
In promoting its interests in the wider world the EU should be guided by and seek to advance the fundamental values of democracy, the rule of law, the universality and availability of human rights and fundamental freedoms; peace between the states, the peaceful settlement of disputes, and respect for international law in accordance with the principles of the United Nations; solidarity and mutual respect among the peoples, the eradication of poverty and the sustainable development of the Earth.
With due respect to the members of the convention who suggest that all sorts of additional special rights be included in the charter, the formulation I have just outlined is universal, and based on democratic principles. It represents the indivisibility of human rights. We have had suggestions that there should, for example, be reference to equality between men and women and to the special position of children. Yet if one looks at one of the suggested formulations, it contains a reference to a common defence, which is not something to which the Irish people would wish to sign up. Moreover, there are omissions in the favoured formulation with no reference being made, for example, to the elderly or the handicapped.
If there is a long listing, the Government will sign up to it. However, when trying to list everything, the danger is that something gets omitted. It is much better to go for a declaratory situation as to where the Community stands. There will be a lot of debate on this topic.
Many specific suggestions were put forward by myself and others with a view to improving Articles 8 to 16, inclusive. I would be among those questioning the advisability of listing the competences because there is always a danger of omitting something, and the omission becomes the basis for people being disadvantaged. I respect points of view put forward by others, and I understand their sincerity. It is likely that in the final text a compromise will be reached. Any appropriately worded compromise will have Government support.
Last Friday we were given the new text of Articles 24 to 33, inclusive——
