My union was responsible for the motion which committed the ICTU to supporting the Lisbon treaty based on the Charter of Fundamental Rights being a key part of it. I have also been the ICTU representative at the National Forum on Europe for a number of years. At that forum we range widely over all of the issues relating to the European project and have not confined ourselves to workers' rights per se.
I want to concentrate on three matters. First, I want to deal with the issues around European Court of Justice judgments. I then want to talk about communicating social policy and what I see as deficiencies in how we do this here. I also want to talk a little about Communicating Europe generally and what I see as some of the issues from my experience of the campaign and also as a member of the National Forum on Europe.
There is no doubt that a social progress clause is necessary, but it is not an expectation on our part that it should be a precondition for supporting the Lisbon treaty. No doubt issues around the Laval judgment were hyped to a large extent here by people arguing against the treaty and it was difficult to make the argument that they were particular to the Nordic model and not here. However, the Rüffert judgment and the Luxembourg judgment, in particular, certainly have given cause for concern that perhaps the European Court of Justice does see companies using a competitive advantage as a legitimate part of their approach to the free movement of persons and services, which contradicts the compromise reached on the services directive — the free movement of persons and services, with the country in which the service was being provided establishing the conditions. The concern is that the European Court of Justice in its thinking may have undermined this but I do not think that is because of an antipathy towards workers' rights. There is no evidence that the court holds that viewpoint. Its track record on gender equality and equality on disability issues, in particular, has been first class during the years. There is, however, evidence that it takes an integrationist or federalist approach. Given some of its judgments, such as in the famous Cassis de Dijon judgment in which it established the principle that if an item was legal for sale in one country, it must be legal for sale in all countries, perhaps it is taking a general integrationist approach.
Two actions are necessary. First, the European Commission stated specifically in May this year that the judgments, including that in the Rüffert case, did not undermine the social market model or even the Nordic model. It needs to provide clarity in that regard. It needs to communicate with the European Court of Justice which is not immune from changing its approach. It has done so previously. It took decisions on the issue of gender equality around positive discrimination which it has subsequently modified with a clearer explanation of the position coming from the Commission. We need clarity in the context of any future referendum. If we do not have it, the danger is that all of this will be presented in a certain way again.
We have taken a view that the Charter of Fundamental Rights is very important. It is part of the Lisbon treaty. Whatever the difficulties were, the position can only be helped by the charter. Apart from the social progress clause which will not come before the Lisbon treaty, we need clarity from the Commission. The sub-committee would be useful in pursuing this.
On communicating social policy, there is a unique provision in the treaty, Article 139, which is taken from the Maastrict treaty, which allows the trade union movement and the employer movement at European level to make agreements applicable across the European Union, which the Parliament and the Council effectively adopt as having been passed and agreed by the social partners, on issues such as parental leave, part-time and fixed-time workers. We are renegotiating the parental leave agreement to try to secure paid parental leave. I am a member of the negotiating team, representing not congress but the European Federation of Public Service Unions. We are meeting the employers' representatives in Brussels to renegotiate it. When the parental leave agreement was agreed in 1995 and communicated by the social partners to our members, we did not really make people understand that it was a European-wide agreement and that it arose from this unique provision in the treaty, Article 139. The circular that the Department of Finance issued on parental leave made no mention of the fact that it had come from the European Union, never mind the fact that it was an agreement with employers. We failed to communicate this and the issue needs to be addressed.
The agency workers directive was supposed to be an Article 139 agreement. However, there was a failure to agree between the employers and the trade unions, yet in this country the Government entirely adopted the employers' position. Whereas the Commission takes a middle-ground position between employers and unions in Article 138 and Article 139 negotiations, when the agency workers directive failed to gain agreement and the Commission took an initiative, the Government and the Department of Enterprise, Trade and Employment took a view to support the employers' position when they should have taken a middle-ground position. We have a problem with how social policy is approached and communicated.
I have had great difficulty during the years in trying to get the Department of Finance to agree to enter social dialogue under Articles 138 and 139. This has been absolutely opposed by it for a number of years. I had battles with it in which I accused it, rightly, of fuelling euroscepticism by the adoption, with the United Kingdom, of a blocking mechanism in regard to these issues. Fortunately, that is changing. The Department of Foreign Affairs recently brought a High Court challenge to a Labour Court decision giving rights to fixed-term workers but we managed to settle that case without going into court. There is now the beginning of a realisation that some of the approach taken on social policy — this default position of opposing initiatives, even though they are Europe-wide agreements negotiated by the social partners, and taking too much of an employer approach — must change.
There is a broader problem. On page 12 of the Millward Brown IMS report on the Lisbon treaty referendum we are told that feedback suggests the amendment might have been passed if the referendum had been held earlier. I have doubts about this, having been active in the campaign. The initial 1972 referendum on accession was passed by a margin of 85% to 15%. Since then, however, the vote has tightened in successive referenda, the margin being 70% to 30% in both the Single European Act and the Maastricht treaty referenda, and 60% to 40% in both the Amsterdam treaty referendum and the second referendum on the Nice treaty. The margin has been narrowing from the beginning.
A major element of our difficulty is that we have fundamentally failed to communicate the political dimension of the European project and sometimes failed to communicate the social dimension. Instead, it has been sold as an economic project. However, the political dimension was always clear, from as far back as the Schuman Declaration and the Davignon report in 1970, in which the political dimension of the European project was clearly set out. The annex to the Copenhagen Declaration of 1973, made 11 months after we had joined the European Union and which posited a European identity, is almost a blueprint for the Lisbon treaty, setting out the political dimension of the Union and, for the first time, the concept of fundamental rights for European citizens and the objectives of development aid. This declaration set out the identity of the European Union as quite different from that of the United States, offering a more just world order in international relations and more equitable shared values. However, we in Ireland failed to communicate this in any shape or form to the populace.
The European Union is the global leader in campaigning for human rights and against torture and the death penalty in all circumstances, including taking issue with the United States on its policy in this regard. Instead of communicating this role, the European project has been sold entirely on an economic basis. Perhaps we have been afraid to open the Pandora's box of the political dimension. However, as I said, the declaration of 1973, made 11 months after our accession, clearly set out the political nature of the project. The failure to communicate this message was evident in the debates at the National Forum on Europe. There is often discussion of the presentation of the European Union as a militarised project, to which the response is always a reference to our neutrality. What is rarely raised, although we have done so in our submission on the future of the European project, is the question of the European Union's response to what happened at Srebrenica, Milosevic, Mladic and so on.
In summary, on the issue of workers' rights, we need clarity from the Commission on how it sees the European Court of Justice judgments to which I referred. We need the social protocol to persuade the European Court of Justice that competitive advantage is not part of the integration approach that should be taken. We must do better in communicating social policy. My own assessment from the National Forum on Europe is that we must communicate the political dimension of the European project to a far greater extent than we have done thus far.