JOINT COMMITTEE ON EUROPEAN AFFAIRS (Sub-Committee on Ireland's Future in the European Union) díospóireacht -
Thursday, 13 Nov 2008

Ireland’s Future Engagement Options in the EU: Discussion.

Chairman

I welcome all our guests. By now they probably are all aware of the work being done by the sub-committee. In particular, Dr. Barrett now has heard me explain it to him on two separate occasions. However, I will put our activities into context again to explain the reason members appreciate the witnesses' time. In particular, they appreciate the contribution made to the sub-committee's work by the witnesses' paper. As they probably are all aware, the sub-committee was set up to examine Ireland's future in Europe in the context of the Lisbon referendum result. Members have a number of terms of reference they have turned into different work modules. The work module under discussion with the witnesses today pertains to the options for Ireland's future in Europe. While members have touched on this issue under a number of different policy headings thus far, this morning they wish to engage with the witnesses on the big picture in respect of our overall engagement options for the European Union.

I thank our guests for the paper they made available to us yesterday. I have had time to read it; it is great and will make a valuable contribution to the work of the sub-committee.

Before calling our guests to make their presentation, I must briefly explain how we organise our business. I draw their attention to the fact that members of the sub-committee have absolute privilege but the same privilege does not apply to witnesses appearing before the sub-committee. I remind members of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.

The way we operate is that the guests will make their contributions and then each group of members represented on the sub-committee will have ten minutes in which to make comments or pose questions. Thereafter, it will be open to anyone present to contribute. Normal practice is that the initial contribution of delegates, as a group, should not exceed ten minutes. However, in the light of the quantity of work in which our guests' have engaged and in view of the importance of the matters being examined by the sub-committee, I will allow some latitude before handing over to members for questions. I call on our guests to outline the work in which they have been engaged.

Professor Daniel Thomas

I thank the Chairman. It is an honour for us, individually and collectively, to be here as associates of the UCD Dublin European Institute. With me are Professor Rodney Thom, Dr. Gavin Barrett and Professor Brigid Laffan.

We state at the beginning of our report that Ireland is at a critical juncture in the aftermath of the June referendum. The term "critical juncture" is perhaps used too often; some might say there is a certain déjà vu quality to this experience just six years after the first referendum on the Nice treaty. By way of introduction to the report, I highlight the fact that the circumstances are quite different. The international environment is far less benign. I refer to the growing imperative of a collective response to climate change, as well as the recent economic crisis. The European Union is far more complex than it was six years ago, with more member states and deepened responsibilities. In addition, the economy is no longer experiencing the growth rates it enjoyed at the time.

I will briefly outline the structure of the report before asking my colleagues to contribute. We thought it would make sense to provide an overview of Ireland's experience of EU membership and the various dimensions thereof before outlining the country's relationship with other member states.

In the light of the letter of commission we received from the sub-committee, we tackled two questions. The first of these is that of the big picture which relates to Ireland's future relationship with the European Union. We identified three scenarios in this regard and discussed their implications. We then dealt with the more specific question of Ireland's choices vis-à-vis the Lisbon treaty. In total, we identified ten scenarios and thought it important to group them as follows: first, scenarios involving a renewed attempt at ratification which is obviously a choice before the Government; second and third, in case Ireland chooses not to or does not ratify the treaty, a set of options in which the other 26 member states choose to proceed, with Ireland, in finding a solution; and fourth, a set of options in which Ireland does not ratify the treaty and the other member states choose to proceed without it in finding a way forward.

That is the broad overview. We identified scenarios and discussed their implications but did not make recommendations. I will now call on my colleagues to flesh out the report in more detail.

Professor Brigid Laffan

I thank the sub-committee for giving us the opportunity to address it. I will address some of the broader, big picture issues in respect of Ireland's future relationship with the European Union. One of the most important aspects of our report is that Ireland's future relations with the Union are not entirely in our hands. It is extremely important to understand that we have some control over what we do but that we have less control over how our actions are interpreted and responded to by other member states. Our future in the Union is contingent on the attitudes, decisions and choices of other member states. We need to be aware of what those might be and to understand them.

The EU works much as we are doing today, with 27 member states sitting around a table accompanied by the institutions. It is a highly consensus-driven system wherein there is always an attempt to go with the grain of national agendas, so as to bring all the member states along. In order to do that it is important all states recognise their interrelationship with the other states. The goodwill which is accorded in late night and early morning meetings is dependent on the way a state plays the Brussels game. Playing the Brussels game involves being sensitive not only to the interests of one's own country but to the interests and preferences of others.

The EU is based on the fundamental equality of states and it is a union of states as well as of peoples. The member states can be categorised as large, medium, small or micro and not all have the same power and presence. Our long-term relationships with other member states will depend on our sensitivity to their preferences and reciprocal sensitivity on their part.

Our report deals with three broad scenarios, namely, continued membership, economic engagement and the question of a two-tier Europe. We may think of the EU as a set of concentric circles. At the core of the circle are those states which are involved in everything and have no opt-outs or limits. Next are member states which have opt-outs of various kinds. The next tier comprises those such as Norway, Liechtenstein, Iceland and Switzerland, which have special relationships with the economic area. The next are neighbouring states which have associated agreements, euro agreements or aspire to membership. The structure radiates from the core in this way.

On the possibilities for Ireland, scenario one is continued membership with limits such as conditions, declarations and-or opt-outs. We currently enjoy conditioned membership in a number of areas. In justice and home affairs we have special arrangements under the treaties for opting in and those are highly contingent on the common travel area with the United Kingdom. In defence and security we are party to the Seville Declaration and there are domestically established limits on our engagement through, for example, the triple lock.

Denmark is often identified as the opt-out country. Following its failed referendum on the Maastricht treaty, Denmark entered into a series of opt-outs covering four areas, namely, security and defence, economic and monetary union, justice and home affairs and Union citizenship. A useful table in our report shows the conclusions of a study carried out by the Danish international relations institute of the impact of the opt-outs on Denmark. We do not say the study represents the actual impact of the opt-outs but point to the fact that it is the work of a very prestigious institution in Denmark.

The next question to consider is whether Ireland might consider further opt-outs. An area that might be considered is security and defence. Should we aim for a blanket opt-out, as Denmark has, or a limited opt-out, perhaps from the European Defence Agency? We need to carefully study the impact of the opt-outs on Denmark. One effect was strikingly illustrated when the Danish defence forces had to withdraw from a NATO mission in Macedonia once it was transferred to an EU mission. Denmark had to withdraw because it is not involved in battle groups or anything like them. However, these are options that need to be looked at very carefully and it is possible to negotiate on them. That needs to be looked at. Our report also mentions the potential opt-out from the EURATOM Treaty. Continued membership with further limits is something at which the sub-committee may want to look.

The second scenario is a bridge beyond what I have described, involving much more significant change. It would involve withdrawing from the status of full EU membership and replacing it with another form of engagement. We identify clearly two models for this. One is the European economic area model which covers Norway, Liechtenstein and Iceland. The second is the bilateral relationship that Switzerland enjoys. The practice is already followed. That needs to be looked at very carefully. It is important to point out that the European economic area and the bilateral relationship with Switzerland allow for access to the Internal Market and flanking policies on the basis that the countries involved must implement market legislation. They must take on board all of the legislation on a continuous basis; that is the price. They must also contribute to cohesion policy in the European Union. There are budgetary and legal price tags. What they do not have is access to the Common Agricultural Policy in any form. They are excluded from it and European cohesion policy in general. That would be a significant shift in Ireland's relationship with the European Union. It would move us from one concentric circle to another. The countries mentioned are considered in the system as outsider insiders. They have access to the market but are outside the system in terms of influence.

There is the even more radical scenario of a two-tier European Union, for which we have no model because there is none. I distinguish between a multi-speed European Union, where countries join things at different times or stay out of them, and a structured two-tier Union. In the report we ask under what conditions might the system move to becoming two-tier, distinguishing institutionally and structurally between member states. We discuss this scenario very carefully and argue that it will only happen if a predominance of member states believe they cannot arrive at a solution or a set of institutional or constitutional arrangements with all member states. In other words, as long as the system can remain intact, for 27 or more member states, this will not happen. It is one of the possibilities we need to consider that may be generated by the actions of other member states, not by ours. We argue that it would alter fundamentally the nature of the European Union but also Ireland's status in it, always depending on which tier we were in. This is a scenario we sketch and it is different from a multi-speed European Union.

These are the three broad scenarios. We are happy to answer members' questions.

Dr. Gavin Barrett

Since I was involved in part 3, it would make sense for Professor Thom to speak next.

Professor Rodney Thom

I wish to speak briefly about the economic implications of Ireland's membership of the European Union. All serious economists agree that Ireland's membership of the European Union has been beneficial for the domestic economy. We can look at this under several headings. We can consider the Common Agricultural Policy, the transfer of Cohesion and Structural Funds and so on, from which we have done extremely well. Unlike some countries, we have used many of the funds well and productively by investing in education, infrastructure and so on.

In terms of the Irish economy, there is broad agreement that the most significant development in Europe was the foundation of the Single Market in 1993. It attempted to transform Europe from a customs union without tariffs into a fully integrated market permitting the free movement of goods, services, labour and capital. Its significance lay in its signal to large multinational corporations, mainly American, to take Europe seriously and to install considerable production bases in Europe. There was a large FDI inflow, the lion's share of which probably went to the United Kingdom in absolute terms. In relative terms, however, Ireland did extremely well. Our FDI was highly disproportionate to our economic significance in Europe.

The Irish line is obvious on the chart we have provided, which should be in colour. One could almost trace the birth of the so-called Celtic tiger back to the start of the Single Market. The Single Market is important, but not just because of FDI owing to our low corporation tax rate and our well-educated and English-speaking labour force. It is not just a matter of investment and job creation. Rather, the Single Market brought significant changes to industry via large firms, namely, cutting edge technology, new management skills, and so on.

It is a fundamental economic principle that labour productivity is the key driving force behind growth. In the 1990s, the productivity of our labour force improved relative to our competitors in the OECD and the EU. This was primarily due to the type of investment seen following the creation of the Single Market.

From this point of view, Ireland has no real options. We are a significant beneficiary and must stay in. Going the way of Norway and others in the EEA would retain access to the Single Market, but we would lose all influence over current and future policy as the Single Market develops. It is not a finished deal. Despite being a small country, full membership of the EU gives Ireland leverage at the policy table. Any movement away from our current position would be silly.

I wish to mention our membership of the single currency, which is referenced in the report. I disagree with some of my colleagues, as I am one of the economists who raised doubts in the 1990s about whether joining the euro would produce net benefits to the economy. I will not go over the details, but we have been proven right on average. From an Irish perspective, the single currency has not been a great success. In the early years when the economy was at approximately full employment and we needed to renegotiate the national wage agreement because of unexpectedly high inflation, the euro was considerably under valued. Recent times have seen a reverse, as the euro is now considerably over valued. Were we running our own monetary policy, we would not have our current exchange rates.

We are members of the euro zone and I know of no realistic way of withdrawing, but leaving would not be the same as opting out in the first instance. There would be a serious political and, perhaps, economic cost. It is not an option. We are members of the euro zone and the door is closed behind us.

We must look to the flexibility of the domestic economy to make sure we can deal with the sort of asymmetric shocks which the euro zone throws at us. If the euro, from our perspective, is overvalued, then we must have a much more flexible labour market, for example, in order to deal with that problem.

Dr. Gavin Barrett

I thank the Chairman. My principal involvement was with part three of this report. I will go through the scenarios envisaged in that, which may be of some use to the sub-committee.

It has always been theoretically possible that the member states could abandon any hope of reforming the present treaties. However, it seems highly unlikely, to put it mildly, that the other member states will give up on any hope of reforming a union which serves multiple purposes for them. The EU acts as a guarantor of peace, an organiser of the Single Market and offers a system of collective organisation in a world which is increasingly dominated by political and economic giants.

In envisaging the possible scenarios in light of that fact, it seemed logical to arrange them broadly in order of their likelihood. For better or worse, it seems that, as a result of the conclusions of the European Council, Ireland is taking the initiative in finding a resolution to the current situation. The Council mentioned that consultations by the Irish Government were continuing with a view to finding a way to resolve the present difficulties. At present, it looks as if the initiative rests with the Irish State.

Category A of the scenarios we have examined involves a renewed attempt at ratification, which looks like the most likely option. In the second of our scenarios, Ireland does not ratify the treaty but the other member states opt to maintain a 27-state approach. In other words, they opt to keep all member states on board, including Ireland. The final scenario, which we hope is the least likely, is one where Ireland does not ratify the treaty and the other member states seek to progress without Irish involvement. We must envisage all of these scenarios, each of which contains a range of options.

In terms of any scenario involving a renewed attempt at ratification, it is important to point out that if such an attempt is made, it is likely to take place in an altered legislative context, at both national and EU level. That is what happened with regard to the Treaty of Nice. It is likely that the Government would make an attempt to respond at a domestic and international level to a range of criticisms and concerns that were raised during the first referendum campaign. Clearly, with the likes of the Millward Brown survey and the process we are undergoing here, a lot of effort has been invested in trying to determine precisely the grounds on which the 12 June referendum failed and what can be done in light of that failure. Some of the concerns might be addressed by Oireachtas legislation or even, should it be found necessary, by constitutional amendment. Others would be likely to be addressed by declarations, legally-binding decisions and, perhaps, although this might encounter resistance on the part of other member states, protocols to the Lisbon treaty, as well as other measures at European level. The Government might then argue, as it did at the time of the second Nice referendum, that there was now a changed environment allowing for the reconsideration of the Lisbon treaty.

I wish to dwell briefly on declarations, decisions and protocols. Members are probably already aware that provisions of protocols have the same status as provisions of treaties in law. There is some precedent for Ireland, having negotiated protocol provisions before. We are all familiar with the Maastricht abortion protocol. Any protocol or set of protocols providing for specific Irish opt-outs from the EU system envisaged under the Lisbon treaty would have to be ratified by all of the other member states, except those states which could argue that their original ratification of the treaty was broad enough to cover that particular protocol.

Clearly there are limits to a protocol-based approach. There are critical provisions in the Lisbon treaty which it would not be possible for a state to opt out of including, for example, the re-weighting of votes and the right to nominate a Commissioner. Second, protocols might also be rejected where they would generate comparable demands in other member states for unique treatment and thus might lead to a wider unravelling of the Lisbon treaty. I heard some mention at this sub-committee of looking for a constitutional filter, that is, a mechanism whereby everything is filtered through the fundamental rights provisions of the Irish Constitution. I imagine there might be some resistance to that from Germany and Poland, for instance, where there is also sensitivity about constitutional and fundamental rights. I am not sure if this would be a runner but it is a point worth making in this regard.

Declarations are not legally binding and should be best regarded as akin to political statements of intent. They have been used extensively by member states to address issues of significance that are not suitable for a legally-binding text. Declarations have in the past been used to clarify a member state's position on particular issues. Professor Laffan referred earlier to some of the occasions when Ireland availed of declarations. The 2002 Seville Declarations relating to neutrality are illustrative in this regard. In the Lisbon treaty context, one might envisage statements in any one of a number of fields such as neutrality, workers' rights, taxation issues and social and moral matters.

Decisions is the third category in which change might take place at international level. Decisions form part of the settlement agreed following the initial "No" result of the Danish referendum on the Maastricht treaty. They are peculiar legal creature decisions that were never before encountered at European level and arise out of the Edinburgh Council conclusions. They were agreed by the Heads of State and Government meeting within the European Council and are best regarded as a type of treaty but independent of the constitutive treaties for the European Union. They are legally binding as a matter of international law and cannot amend but only clarify or implement treaties. The constitutive treaties take precedence over them. There is some uncertainty as to whether the International Court of Justice or the European Court of Justice would have jurisdiction in regard to them. It would probably be the International Court of Justice that would have such jurisdiction. Domestic level reforms could also be envisaged. An issue discussed during a previous session is a possible increased role for the Oireachtas in regard to control of matters at European level.

I will now address the various scenarios as quickly as I can. Scenario one is a second referendum on the Lisbon treaty. There is not a great deal that can be said about this other than to make the point that no legal obstacle appears to exist to the holding of a referendum on precisely the same issue or some variation thereof. This is governed by Article 46.2 of the Constitution.

The second scenario is ratification to some extent by Parliament rather than referendum. This has been suggested by some as an appropriate approach to take. In other words, rather than holding a referendum on the Lisbon treaty as a whole, some aspects of it could be dealt with by way of referendum and others could be ratified by Parliament. The main judicial authority in this regard is the Supreme Court case of Crotty v. An Taoiseach. The approach taken in this case hinged largely on the question of whether a new treaty alters the essential scope or objectives of the existing treaty. If it does, the existing constitutional authorisation to join the Union and to sign up to the treaties which have gone before Lisbon, will not extend to immunising entry to the Union as envisaged in Lisbon or extend the constitutional immunities provided for by Article 29.

The effort to determine when an amending treaty goes beyond the essential scope or objectives of the existing treaties is impossible to apply with much certainty largely because Crotty is the only case to have been decided on this particular point. I have heard some of my legal academic colleagues say that a referendum was not necessary and others assert that there is absolutely no doubt that a referendum is needed. There is a whole spectrum of opinions in this regard. The point is not merely legal, the legal situation has contributed to public expectation that any significant EU treaty change will entail an amendment to the Constitution. There are political and legal issues involved.

It has been suggested that specific provisions or objectives of the treaty that might go beyond the scope include measures such as giving legal effect to the provisions of the Charter of Fundamental Rights, the ending of the situation whereby the European Community has a separate identity and the role of the proposed high representative in foreign affairs and security policy. These are only suggestions. The reality is that we do not know what will be the position until the Supreme Court pronounces on the matter.

There are three possibilities in relation to ratification of the Lisbon treaty to a greater or lesser extent by Parliament alone: the holding of a referendum only in regard to those parts of the Lisbon treaty which it is considered might raise constitutional difficulties. In principle, if the State were to hold a referendum only on aspects of the treaty which might raise constitutional difficulties, and the vote was positive, the Government could then proceed to ratification. A complication arises, however, in that it is difficult to know in advance of a Supreme Court ruling which aspects of the treaty might raise constitutional difficulties and as such it would be difficult to design a referendum in this regard. One could attempt to have a referendum on any aspect of the treaty one believes might raise constitutional difficulties.

If a referendum vote in regard to any of those aspects of the Treaty of Lisbon was negative it does not appear possible for the State to ratify some but not all of the treaty. What the State would have to do is ratify the treaty as a whole, subject to a protocol providing for opt-outs in regard to those parts of the treaty rejected by the electorate. Those opt-outs would have to be agreed with other member states and if they involved a protocol, those protocols would have to be accepted by the other member states and ratified in their national legal systems.

Holding a referendum only on those parts of the treaty that have raised political difficulties is basically the same as the previous option I mentioned, except it would be a broader approach to take. I draw attention to the point I made earlier concerning the unsuitability of certain provisions being dealt with by protocols, such as the re-weighting of votes and Commission membership.

Parliamentary ratification of the entirety of the Treaty of Lisbon would be the third option. It is not clear whether that would be constitutional, quite apart from the political and democratic considerations that would apply. There may be provisions of the Treaty of Lisbon that require a constitutional referendum and questions of democratic appropriateness and political acceptability arise also. The only useful method of attempting parliamentary ratification on its own might be as a means of finding out in advance of a referendum which aspects of the Treaty of Lisbon required a referendum. Whether politically it would be possible to envisage use of it in that manner is another question.

Scenario No. 3 was suggested in an article by Stephen Collins, journalist with The Sunday Tribune. That was an all or nothing style referendum regarding membership of the European Union, as that Union is envisaged in the Treaty of Lisbon. In other words, one holds a referendum to ask whether the State wishes to become a member of the European Union, as the Union is envisaged in the Treaty of Lisbon. It would be an extremely high-stakes strategy to hold a referendum on that basis. I am not sure whether I would recommend it. However, we are not making recommendations.

Let us consider scenarios whereby Ireland does not ratify the treaty and the other member states opt to retain a unified 27 state approach. That is the second set of scenarios. I wish to mention three of them. The first is an agreed disaggregation of the Treaty of Lisbon. In other words, one takes apart the treaty of Lisbon and one adopts by other means as many of its provisions as possible. One unbundles it, in effect, and puts it together again. The kind of things one would have to do to do that would be to use the treaty's enhanced co-operation procedures, the flexibility clause in Article 308 of the EC treaty, inter-institutional agreements, political commitments, treaties outside the constitutive treaties along the lines of the Treaty of Prüm that was agreed some years ago and use of the Croatian accession treaty. The result, as members might anticipate from my listing of the ways in which one would do it would be a mess. It would a complex, opaque web of legal and non-legal rules, beside which the complexity of the Treaty of Lisbon would pale in comparison. It would be inferior from the point of view of the rule of law. In addition, forcing the other member states to avail of that option would be hardly likely to win Ireland a great deal of goodwill. From an Irish perspective that option would clearly be preferable to the other member states seeking in some way to go ahead without us.

The suggestion of a mini treaty has also been made. John Temple Lang, a very well known lawyer, made this suggestion. If another attempt at ratification of the Lisbon treaty fails or is ruled out, it might nonetheless be considered in the interests of the State to offer to ratify by parliamentary vote aspects of the Treaty of Lisbon which do not appear to require a constitutional referendum in this State and yet are considered highly important to other member states. I refer, for example, to the re-weighting of votes for the purposes of calculating a qualified majority in Council or the provisions laying down the number of Members in the European Parliament. Neither of those seems to require a constitutional amendment, especially the re-weighting of votes, because if one thinks about it, we have had a succession of accession treaties, which have effectively re-weighted votes in the European Union and none of them have ever been held to require a referendum.

Renegotiation is another scenario that has been put forward by some. At present, there is no indication from any other government that it might be willing to recommence negotiations on the existing treaties. The matter has been rehearsed through this committee on previous occasions but I make the point that eight years of negotiation underlie the Treaty of Lisbon. It is a complex compromise and there is a genuine fear on the part of the other member states that if we try to renegotiate the treaty we would open a Pandora's box and we might never get agreement on it.

Even if such renegotiation were to succeed, there would be no reason to believe it would result in a strikingly different treaty to the one proposed. This was the case when the constitutional treaty fell. Therefore, why would we expect a strikingly different treaty after the fall of the Lisbon treaty? There would be no reason to expect a better deal for Ireland. There is little or no incentive for the other member states to renegotiate with us because they are acutely aware that Irish Governments have twice failed to win referendum votes on EU treaty ratification.

Any new treaty would have to be ratified in all member states. Since the UK Conservative Party, which still seems likely to come to power in the United Kingdom in 2010, has insisted that no new treaty will be ratified by a Conservative Government, such a treaty, even if agreed, would actually have very little chance of being ratified. Renegotiation seems a wholly unlikely prospect.

We obviously hope that the least likely scenario will involve member states seeking to progress without Irish involvement if we fail to ratify the treaty. On the other hand, the point must be made that no such scenarios can be entirely ruled out in the event of permanent Irish non-ratification.

Let me address the four scenarios as rapidly as possible. First, on the replacement of the Lisbon treaty with a similar treaty requiring an altered ratification process, one could theoretically envisage the other member states agreeing the content of the Lisbon treaty again but including a clause therein stating that, instead of its having to be ratified by all member states, it would come into force after a number of member states ratified it, but only for those member states. That approach was used in the adoption of the US constitution. Rhode Island rejected it originally but changed its mind afterwards. Only Rhode Island would have borne the consequences of its decision.

The second scenario is the denunciation of existing EU treaties and the adoption of a new EU treaty framework. This is not specifically provided for in the treaties but denunciation of the treaties has always been regarded by the member states as a legal right. That point was exemplified by the holding of a referendum in the United Kingdom in 1975, which was conducted on the basis of a belief by all concerned that the state retained the right to leave the then EEC.

The third scenario is leaving the European Union as an empty shell and establishing a new union without Ireland. This is similar to the last possibility except that the existing treaties would not be denounced, merely left to founder in neglect. There is a rough precedent for this. The 1954 Brussels treaty establishing the Western European Union is still on the books but most of that union's primary functions have been taken over by the European Union.

The final option, which Professor Thom correctly stated would not make a great deal of sense for Ireland, would be to leave the European Union in favour of the European Economic Area or some other special relationship. The only scenario in which it would be possible to envisage such a step would be if Ireland were presented with a less palatable alternative by the other member states. Such an alternative would include the preceding two scenarios, namely, denunciation and leaving the European Union as an empty shell. This is most certainly not on the agenda for now and I hope it never will be.

Chairman

I thank the four speakers for their contributions.

Deputy Joe Costello

The delegates are all very welcome. The document they presented is extremely valuable. It reveals very clearly our task in dealing with the matter at hand and also highlights just how complex the issues are.

We have had a guest from the Czech Republic in recent days and he claimed the Union has moved too far in the direction of supranational governance or federal governance and that we have lost or moved away from the democratic and intergovernmental aspect of the Union.

The Millward Brown IMS survey reveals that many Irish voters perceive the European Union to be too elitist and as having moved too far in terms of integration. It is believed that the Lisbon treaty reflects this to some extent because it is reforming the institutions, tightening them up and making them more effective, but effectively making them more centralised. How would the delegates respond to this?

Our various options are very interesting and some are very stark. Let us consider the first, that is, continued membership with limitations in several policy areas. This, as Professor Laffan stated, is our current scenario. As we have exercised various opt-outs, declarations or protocols over the years, it is not entirely new. However, in the areas we have identified in recent weeks as bottleneck areas or areas that have given rise to considerable difficulty in the Lisbon treaty as reflected in the surveys, I ask the witnesses to go through them individually and suggest how they might be addressed. For example we have spent considerable time dealing with religious issues and the perception that there are sensitive social issues here. There is a perception that perhaps Articles 40 to 44 of our Constitution might be changed in terms of a constitutional filter and our domestic law might be reviewed. Would there be any validity for a protocol that might be agreed in that respect, without moving too close to renegotiation?

Workers' rights represented a major issue for the trade union movement. A very large percentage of people indicated they voted "No" because they did not believe the measures in the Lisbon treaty protected workers' rights adequately. What type measure might be taken to address that? On security and defence issues, there were all sorts of misrepresentations about conscription and so on. Nevertheless a very substantial section in the Lisbon treaty seems to tighten up the area of security and defence and imposes requirements regarding military capabilities and so on. Taxation was another area that gave rise to considerable debate.

The settlement lodged with the United Nations, which effectively had the strength of law and subsequently was incorporated into a forthcoming treaty, seemed to be a new mechanism that was created by the Danes. Do any of the witnesses know of any other new mechanisms to assist us move forward or have they all been exhausted at this time?

Professor Brigid Laffan

I might begin with the first and very challenging question that really is about the nature of the EU. If one looks at the EU from the world down, then the EU is probably the only international organisation in the world that is in a process of democratisation. It is much further along than any other international organisation. It has direct elections to a Parliament and is based on the rule of law. If one thinks of how states became democratised in the 19th century, they started out by having constitutions and the rule of law and then over time democratised the institutions.

If one looks at the EU from the national view up, it appears distant — Brussels is over there. It appears elitist. There is a very weak and low knowledge about Europe in many member states and particularly here. That is a challenge to individual citizens when we are asked to make decisions on the system. It is also a challenge to the EU. However, the characterisation of the EU as highly federal, à la the united states of Europe, is not what the EU is nor is it what the EU can become. Over the 1990s the EU has gradually introduced more democratic features to the way it works. For example one of the key provisions in the Lisbon treaty that is important for this institution is the strengthening of the role of national parliaments. We will not wake up in the morning and find that suddenly the EU is deeply democratic from top to bottom. Nation states were forged and became democratic over long periods and the EU will face the same process.

The argument that the balance between supranationalism and intergovernmentalism in the EU has tilted in the supranational direction is difficult to defend. In a way, the big political decisions and direction are established in the European Union by the European Council. The representatives in the Council are the top political office holders in all the member states who come with strong electoral mandates, as they are the Prime Ministers — the President in the case of France — of their respective countries.

As to the notion of faceless bureaucrats in Brussels, every committee in Brussels includes people from the member states who leave home bleary-eyed at 6 a.m. and arrive in committee rooms in the Belgian capital at 10 a.m. On the belief Brussels is not in the hands of the member states, it is extremely important that when governments and their representatives make decisions or contributions in Brussels on behalf of their states and people, they must be held accountable for their actions in their domestic parliaments. To repeat a phrase I used earlier, they must bring it back home in the sense of informing and highlighting to people what is happening.

The European Union is a contained polity; it is not like a nation state in the sense that it is limited in terms of taxation policy. The EU budget is less than 1% of GNI. It is not an organisation which taxes people heavily. While it will have a security element, this will never be a large national army. As it is not like a member state, it will always be thinner in democratic terms than a nation state. That said, whenever institutions are in a process of being challenged in democratic terms, tension and contestation inevitably arise. At the heart of the European Union is the fact that political forces in Europe have very different visions of the kind of Europe they want. The Czech President who visited Ireland yesterday would have a different view of the kind of Europe he wants from President Sarkozy and others. It is inevitable but not unhealthy that conflict will arise. Conflict and contestation are the heart of politics and we should not run away from them, nor should we run away from debate and disagreement about what the European Union is or might become.

Equally, we cannot fail to challenge what are caricatures of the system, for example, the high levels of centralisation and so on. The academic evidence does not support this interpretation of the European Union. On the other hand, I fully accept Deputy Costello's comment about the sense of unease and the belief things are happening on which we, as individuals, do not have a handle. However, in a world of globalisation and high levels of economic interdependence, the best chance we have of democratising these forces, for historical reasons, lies in the part of the world in which we live.

Dr. Gavin Barrett

I will take up some of the issues discussed. To add to Professor Laffan's comments on the supranational versus intergovernmental issue, a hallmark of the European Union since it was founded, particularly the European Communities, has been the supranational aspect which has distinguished the Community. There is also an intergovernmental aspect to the European Union but its supranational aspect has been an important one which makes it work at European level. There are also alternative visions of an intergovernmentally run European Union. We must remember that this approach was tried without a great deal of success. It is important to consider this fact in the supranational versus intergovernmental debate.

A specific question was asked about how to deal with various issues, including religious matters, and the idea of a constitutional filter was mentioned. In so far as such a mechanism would involve subjecting European Community law to a filter of the entire body of Irish fundamental rights provisions in the Constitution, it would not be practical, as it would destroy the unity of the European Union legal order. If we had such a filter, all other member states would also have to have it. That is not practical because it would destroy the unity of the European Union legal order. If we got that, everyone else would have to get it as well. It would mean every provision of European law adopted would have to run a gauntlet of its constitutionality being tested in every member state of the European Union. It simply would not work. There would be no European legal order if that was done. The only thing that might be envisaged is a protocol that addresses particular issues. We already have a protocol on abortion and I do not know what other issues people might advocate that would warrant a protocol — perhaps something on embryo research. Those interested in this approach would have to draw up a list of rights they believe should be put into a protocol and then the matter could be considered. However, I do not believe constitutional filter overhauling will work.

As regards a protocol being too close to renegotiation, we must distinguish between special arrangements for Ireland in relation to which there would be less resistance and renegotiation of the whole treaty for everyone — which would generate an enormous amount of resistance. However, some member states that have experienced difficulty with the ratification process might resist the use of protocols in so far as they would require re-ratification in those jurisdictions. There might be resistance not because the individual member states object to us getting a particular opt-out on anything in particular, but rather because they do not want to re-run the whole ratification process.

On particular ideas in that regard, there is a very good article by a UK academic, Professor Steve Peers, suggesting what could go into a Danish style decision for Ireland. A decision could address the following issues, but it would be up to the Government to negotiate: confirming Ireland's facility to opt out from EU legislation concerning criminal law issues; confirming that Ireland would retain a veto on taxation matters; confirming that nothing in the treaties or Charter of Fundamental Rights can impact on Irish law on abortion; confirming that nothing in the treaties affects Irish neutrality.

It is important when we look at the Danish decision that an enormous amount of what it contained was merely confirmatory in nature. There were four parts to that decision: confirmation that EU citizenship gives member state nationals additional rights — that is only a clarification of what was already in the Treaty of Maastricht; it also noted that Denmark had notified that it would not participate in stage 3 of EMU — that merely made use of a possibility that was already in the Treaty of Maastricht; and so on. The other ones were only clarifications as well.

It was a legally binding agreement, but it is possible to put into a decision matters that just need confirming — and it gives them legal status as an international treaty. There is a legal commitment that this is the case. Apart from declarations, decisions and perhaps protocols — although decisions and protocols are actually alternative to one another — it is forgotten that the Edinburgh Summit also included a package of general measures. These were things relating to subsidiarity, transparency, issues on promoting growth and combating unemployment. They were not specifically directed at Denmark, but they were agreed. General measures could be agreed at European sub-treaty level in relation to legislation.

Deputy Costello mentioned one issue in particular. I realise the left wing of the Irish political spectrum has been very concerned about social protection and economic freedoms. There could be a commitment in that regard to expedite adoption of outstanding and upcoming social proposals, perhaps. That might be done to adopt legislation that strengthens social protection in so far as this concerns posted workers, because that was something that came up very much in the Viking and Laval cases.

Chairman

It is not something one could see being done domestically.

Mr. Gavin Barrett

No, but it could be done at European level. In other words, a declaration could be given by the states, generally, committing themselves, in effect, to expedite the adoption of legislation in the social field and in particular to having a look again at the operation of the posted workers directive, which caused so much controversy as a result of the decisions taken in that regard.

Deputy Lucinda Creighton

I warmly welcome our guests and thank them for the extremely interesting paper. I have not had the time to go through it in detail, but from a cursory look it presents many options that we will have to seriously look at in terms of drafting our report at the end of this process. I would like some clarifications. Regarding a time frame for this, there is conflict with the views of other member states and the Irish Government, and the practicalities and realities at domestic level. There was, and still is, quite an amount of pressure to resolve this crisis in advance of the European elections. I do not think that is practical.

What does the delegation see as an obvious, probable or likely timeframe for this problem to be resolved? It is obvious that it depends on the solution that is eventually arrived at. Given the current political climate here it will be very difficult to have it ratified if it goes to a referendum, of whatever description. The unfortunate thing about referenda, as we all know, and particularly regarding European referenda, is that they do not often boil down to the issues contained in the treaty in question, and often become a referendum on other issues. I fear that in the current economic situation that will happen if we rush into this. I would like to hear the views of the delegation on the way we are approaching this debate.

I have an increasing sense that we are all scrambling to find a solution, such as another referendum with protocols. What the Government has failed to do since the defeat of the Lisbon treaty referendum is to articulate a vision that can bring people on board and give them a sense of belonging and of being part of this process. Disaffection at a national level is being taken out on the European Union and the European project. Nobody is saying, "Wait a second, we need to understand how important this is to us".

I find it bizarre, in the context of things that have happened in recent months since the referendum defeat, particularly regarding Georgia and the financial crisis, that instead of the Irish people looking at those scenarios and saying "We are better off in the European Union and being at the heart of it, being fully integrated and part of the decision making process", the European Commission is being scapegoated because of our breach of the Stability and Growth Pact. We are beginning to see a scenario where the citizens of Europe, and of Ireland in particular, are not seeing their solutions as solvable at a European level. The reality is that is the only way in which these types of problems can be solved. I would like to hear the views of the delegation on how we can address that over the course of the time frame available.

Nobody, or those of us who have any belief in the European project, wants to see a two-tier Europe. Anybody who believes the EU has been good for Ireland could not believe a two-tier system would be a positive development. If it were to arise as a scenario, and the delegation is right to say we must consider all scenarios, what would the legal basis for that be? I am not quite sure how a treaty of the EU member states that excluded one member state could be ratified. I find that impossible to reconcile with the principles of the European Union. Would a more likely scenario be the option put forward that one would have to denounce the previous treaties? Is that the only way? From the point of view of our national interest, that would be a disaster.

In their study of this in recent months, have the delegates noticed any tangible decline or reduction in Ireland's influence at European level? I have spoken to several diplomats from different member states who are very blunt about it. They say their counterparts in Brussels do not want to hear Ireland and that when Ireland raises its flag, it is ignored as never before. This is what we are being told, but nobody has come to this committee and given any tangible examples of this. Could the delegates set this out for us?

Do the delegates see a likelihood of other member states not ratifying the treaty, for example the Czech Republic? They mentioned the possibility that if we put forward protocols, some member states will jump on them as an opportunity to slow down or stop the process. Which member states are likely to do that?

I have serious concerns about opt-outs as I feel our role should be at the heart of the decision making process. If there is to be another referendum of some description, should we consider opting back into the justice and home affairs aspect? I do not believe that anybody other than lawyers — and I am a lawyer — has any concern about the integrity of our common law system. There is no reason it cannot be reconciled with the civil law system across the European Union to combat terrorism, crime and so on. What are the delegates views on that?

Professor Brigid Laffan

I will begin with the issue of the time frame. This is very clear. There is a British election due in 2010. If, as is likely, the Conservatives win that, there will not be treaty reform over a period. If this constitutional impasse is not solved in a reasonable time before then, the EU faces serious difficulties. If we are part of the creation of those difficulties, that will have consequences for us.

It is unlikely, domestically, that Ireland will have decided on its future in the EU before the next European elections. The consequence of that is that 12 other member states will have fewer MEPs than they would have had we voted for the Lisbon treaty. In other words, our decision, which in terms of numbers of MEPs has had no impact on us, has had an impact and will impact on 12 other countries. I mention, for example, that there will be four fewer Spanish MEPs who are not and will not be pleased. There is already collateral damage in that sense.

In terms of a time frame, one thinks in terms of 2009. If the European Union goes into 2010 in an uncertain constitutional and institutional frame, that will have serious repercussions for the EU and for countries in the Balkans that are looking to membership. Therefore, the time frame is very tight. There are those who would argue about that, but the milestones are there and they are clear. We should think in terms of those milestones.

With regard to vision, the European Union did not respond that badly to the financial crisis. Originally it was seen as a US crisis, but it suddenly became a banking crisis throughout the world. What the financial turbulence underlines for us is our interdependence across the globe — Europe's interdependence with the rest of the world and Ireland's interdependence with the European Union and globally. Given that we are now facing into the second decade of the 21st century, the challenges facing Ireland, Europe and the world are significant. Over the next 20 years, Europe will decline in weight in population terms in the world, so it must have its house in order in terms of how it deals with the world. That is what much of this is about, namely, where Europe is vis-à-vis the other emerging powers. We look now to a very different US, with a very different President who will be more multilateral and will seek a more multilateral relationship with the European Union.

In regard to whether our influence at EU level has ebbed away, it is very difficult to tangibly demonstrate that "A" happened because of "B". I will simply identify for the sub-committee a number of impacts. If a major issue arises, such as has occurred in regard to our relationship with the EU, we cannot subsequently bat on every issue around the Council table. Much of the political and diplomatic efforts being exerted by this country at present are devoted to the issue of Lisbon and our future in Europe.

There has been a serious impact on our relationships in Europe. In the past, we have always enjoyed extraordinary support from Germany. Among the large states, Germany has become very respectful of small states because of its history. However, our relationship with Berlin is as poor as it has ever been in the entire 35 year history of our membership. Germany has worked very hard to achieve a double majority in the European treaty because it did not want to see a situation involving 35 states where others could write cheques using German money. It was in its interests to act as it did but we are making the matter extremely complicated. Even though Chancellor Merkel has been extraordinarily sensitive in public, I guarantee the sub-committee that irreparable damage could have been done to our relationship, which is not something we should want.

The Good Friday Agreement has brought us closer to the United Kingdom, which is positive in historic terms. However, the entire British diplomatic service argued strongly in Europe against our bank guarantee. It is not in this State's interest if our only special relationship in the EU is with the UK. That country will pursue its own interests, as it should, but we should not assume these will be the same as ours in all cases.

We have suffered an historic loss in terms of the respect paid to Ireland by the new member states from east and central Europe. We were regarded as a model for how a small, poor and peripheral state could manage a complex world and make a success of EU membership. We have lost that respect and are now regarded as a state that benefited enormously from the EU in financial and economic terms while remaining conditional in our commitment to the system. I would not dream of putting figures on our influence but we cannot ignore the fact that our standing in the EU is not the same as it was prior to the defeat of the Lisbon referendum.

Given that other countries have also experienced difficulties with the EU, we should not think our current standing will stay the same forever. However, we must at least acknowledge that our relationship with the EU is, in the broad sense, facing its most challenging period since we joined on 1 January 1973.

Professor Daniel Thomas

I ask Dr. Barrett to address the legal basis of the two-tier system, keeping in mind that at present there is no such system, and the future of opt-outs or, perhaps, a justice and home affairs opt-in.

Dr. Gavin Barrett

We divided the possible outcomes into three scenarios as follows: ratification; the event of ratification not taking place that member states would proceed as a 27 unit entity; and a scenario in which some member states would proceed together while leaving Ireland behind. We asked how we might be relegated into a subordinate position, although we hope this will not happen. If progress together becomes impossible, it is inevitable that some states will proceed together. We have to acknowledge that reality.

As unlikely as these scenarios seem now, we must examine them as possible mechanisms. How could that happen? This refers to the four scenarios I mentioned, seven, eight, nine and ten, one of which involves the replacement of the treaty by a similar treaty with an altered ratification process. This involves states that agree to being bound by treaty arrangements and those that do not exiting and finding another arrangement. One could not amend the existing treaties in doing so because Article 48 does not allow it. This effectively involves a refoundation. A new treaty framework would be set up in that regard.

A second option is the denunciation of existing EU treaties and the adoption of a new EU framework. That is capable of being envisaged and it is a major step to do so. Legally speaking, it is capable of being envisaged. The other member states would denounce the existing treaties and adopt a revised set of treaties, with references to Ireland deleted, and any changes the other member states wished. In order to stay inside the EU at that stage, Ireland might well agree to enter a second tier. It might be better to be inside a two-tier reorganised EU than outside it entirely. There is a question of alternatives in that regard.

Other options are leaving the EU as an empty shell and establishing a new EU without Ireland or Ireland, confronted with an unpalatable situation such as refoundation, leaving the EU in favour of the EEA area or another relationship. There are legal means by which member states can make progress. As Professor Laffan said, their preference is to move forward as a 27-member state Union. That is the way Europe works, by consensus, with everyone moving together. If we make it impossible for Europe to move as a unit, other scenarios such as a two-tier Europe, become the only option.

I agree that the justice and home affairs opt-out should end. I am a lawyer too and I do not like it. In particular with regard to police and judicial co-operation in the criminal law field, I do not like the opt-out from the jurisdiction of the European Court of Justice. That is a field in which there should be maximised judicial control. Ireland is in the peculiar situation of opting out entirely from the jurisdiction of the European Court of Justice in that regard, a position shared only by the UK and Denmark.

The situation arising from the Treaty of Lisbon does not pertain to the constitutional treaty but, in the justice and home affairs area, it was agreed that Ireland would be out but with an opt-in arrangement. I am not convinced that the Irish legal system is so radically different from legal systems on the Continent that we need this opt-out.

In dealing with representatives from other member states, these issues have been dealt with. My impression is that opt-outs are not beneficial. One loses influence and arrives late, failing to shape policies before opting in, by which time it is too late to adapt the policies. One should be cagey about opt-in arrangements. Regardless of the outcome of the Lisbon debate, I would like to see Ireland opt into the jurisdiction of the European Court of Justice in police and judicial co-operation in the criminal law field. Opt-outs are only used as a method to bring the population along if there are aspects of the overall settlement that seem so objectionable to the population as a whole. In terms of practical effects, they tend not to be positive. If they are necessary to get consensus, it is fair enough but, in terms of effect, they do not tend to be positive.

Senator Déirdre de Búrca

I thank the delegates for the presentation and compliment them for a report produced in a short period of time. It is incredibly accessible. I did not expect it to be so easy to read and so compact. It should be circulated more widely.

Most journalists interested in European affairs would probably appreciate the opportunity to digest and consider some of the proposals and analysis made in the report. What struck me initially was the critical juncture mentioned by Professor Thomas and the other delegates because it is important for us as a country to understand that what we are examining is not only an Irish problem. We have been trying to decide whether the dilemma which the Irish people have presented the European Union by voting to reject the Lisbon treaty is a European or an Irish problem only. The delegates have made it clear in their report that it is not only an Irish problem but, effectively, a European one. The Irish rejection of the treaty has triggered a situation in the European Union which may result in it reorganising itself or at least introducing a new constitutional order and system of governance which may not be in Ireland's interests. It would certainly fundamentally change the nature of the Union which is, effectively, a community of legal equals and one based on consensus where everybody tries to move at the same speed, to one which the delegates loosely described as a two-tier European Union. If that were to happen, it remains to be seen what Ireland's position would be. We are at a serious and critical juncture when we reflect on the issue in these terms, namely, that the referendum result may trigger a fundamental reorganisation of the European Union.

That brings me to the unanimity requirement. Much of the time when people defend Ireland's decision, they point to the fact that under the current treaties, unanimity is required for a new treaty to be ratified and that, therefore, it is the prerogative of any member state not to ratify it and the process may not be able to be advanced. How practical is the unanimity requirement at this point in the development of the European Union? Given its size with 27 member states and the fact that it is likely to expand, how practical is it to have this arrangement where the European Union is expected to arrive at a constitutional arrangement that will receive the support of all member states, given that they have different attitudes and ideas about the eventual level of integration they want to see the Union achieve?

My second point — I notice this is mentioned in the report — relates to Ireland viewing its EU membership in terms of economic modernisation and financial transfers. Traditionally, that is how we have understood and responded to our EU membership or at least how we have conceptualised it as being largely about economic modernisation. Has it been a limited understanding on the part of the Irish people of their relationship with the European Union? To what extent do the delegates consider that is the fault of political parties? Do we need a new narrative that stresses much more the interdependence of EU member states and the many other areas in which we have benefited from membership?

The third issue I wish to raise is that of opt-outs. The Danish opt-out is an example of a blanket opt-out. It was obviously foreseen as permanent when negotiated by the Danish Government. It seems the Irish opt-out from the justice and home affairs provisions of the Lisbon treaty was much more flexible. It was based on the idea that Ireland was opting out but could opt in on a case by case basis. Also, it was seen as temporary, with a review after three years.

In ratifying new treaties it seems countries are often unsure about the possible implications of particular provisions. In the case of Ireland where the population has a say in voting for a treaty in a referendum it seems it may be necessary to have a temporary mechanism covering a particular area in order that the people can be reassured until experience proves the fears expressed are groundless. Do the delegates recognise the advantage of opt-outs from that point of view?

My fourth question relates to the new economic climate. The problems in the international financial markets and the imperatives of climate change will have major economic implications. I believe there will be a redesign of the system of regulation of international financial markets. We will also see the rules underpinning the global economy changing over time because of those forces. Do the witnesses believe it would be better for Ireland to be an integral member of the European Union and its decision-making structures so that it can contribute to the formulation of the new rules? Do they believe we would be at a disadvantage if we were outside in a more marginal position regarding European decision making in those areas?

My last question relates to a rerunning of the Lisbon treaty referendum, possibly with protocols and declarations added at the request of the Government. Regardless of whether that happens and we get concessions from other states or clarifications, much depends on the Irish public. As the treaty would need to be put to the public again by way of referendum, the attitudes and understanding of the Irish people would be essential. Obviously the current climate with budgetary cutbacks, etc., will not assist the public mood in being benignly disposed towards the Government and what it is advocating. Do the witnesses have any suggestions as to how we might try to help the Irish public arrive at an informed decision, whichever way they decide? If there is to be a second referendum, what kind of process should be entered into to try to ensure the best possible outcome from a second referendum and an informed decision by the Irish public?

Professor Daniel Thomas

If I may, I will respond to the Senator's very good question about the unanimity requirement. Obviously when the community was born, it had six states with no history or experience of the community method. The unanimity requirement and the equality of member states were absolutely essential. If one looks at the mathematics, going from six to nine to ten to 12 to 15 to 25 and now to 27, the question poses itself as to whether this is still a realistic strategy. My sense is that the proof of the pudding is in the eating.

Within the treaties we have the option of qualified majority voting not relying strictly on unanimity. However, there has been a very clear desire by the member states to continue to rely on consensus and not to move forward in a way that leaves one country outside, even if it is technically possible to do so. As long as we live in a world in which the EU has tremendous responsibilities and yet the public does not fully understand exactly how it works, the unanimity process and the consensus process is essential to keeping the public at least somewhat on board in this.

Chairman

Does Professor Thom want to respond to any of the points Senator de Búrca made?

Professor Rodney Thom

I have no real comment from a narrow economic perspective. We use terms like "opt out". It is very important to remember that opting out is very different from leaving. For example, the Danish opted out of the single currency, but we would have to leave if we were to follow their path. They are very different things. Leaving an existing arrangement is very different from not joining it when it originally started.

Dr. Gavin Barrett

I will deal with a few of the questions. The Irish opt-out is flexible and includes a three-year review, and we can opt into particular provisions. That is all absolutely correct. The Senator made the point that opt-outs can be necessary to reassure people on a temporary basis. I also agree with that. That is the argument for having them there. That is probably even the argument for having the Irish opt-outs in the justice and home affairs area. It is perhaps a reassurance to that community of Irish people who are most involved in applying rules and have concerns, whether they are justified or not. I am not particularly convinced that they are. However, if there is a large influential sector of the Irish population who feel there is a concern, obviously politically speaking one must respond to that. That in large measure is the explanation of why we opted out.

Historically speaking our opting out of justice and home affairs measures began at an early stage at Amsterdam. The reason given for it was the necessity to maintain the common travel area. We attached a declaration to the treaties at Amsterdam stating that we would opt into everything in so far as it did not endanger the common travel area. We have not done that and it is not going on. We are selecting on a case-by-case basis whether we will opt into things. I am concerned that an opt-out that began as something necessary to maintain the common travel area is evolving into something else; it has done so with the Treaty of Lisbon. I have concerns although I recognise political necessity means opt-outs are sometimes required. To take up the point, there is a need to reassure people that they are, I hope, on a temporary basis.

There was a point about marginal involvement and Ireland being at a disadvantage. There is no doubt about this and one of our main advantages is our place at Europe's table. One would simply not want to give up that place at the table because influence is lost. On running the referendum and changing attitudes, it is very difficult to change attitudes in a short period. It is almost impossible.

On suggestions for arriving at an informed decision, one option that may be considered if going the route of partial referendums — those dealing with particular issues, with parliamentary ratification of the rest — may be legitimised by the commitment to hold a further referendum on membership as a whole further down the road. Some issues could be dealt with by parliamentary ratification and there could be referendums on constitutionally questionable aspects but there could also be a commitment that within two years, for example, a further referendum would take place on the issue of EU membership. That may be another possibility, although it is not mentioned in the report. It may engender more legitimacy in the process.

There is a very steep learning curve involved and much of the debate has taken in very practical matters which concern people, which is legitimate. There is a broader vision for Europe that tends to be left behind and forgotten in the Irish debate. How that is factored into the national political arena is a very difficult question.

Professor Brigid Laffan

To take up the point of rerunning a referendum and informing the Irish public, we know the behaviour of the Irish electorate from The Irish Voter, the book which looked at Irish electoral competition. The Irish first vote for candidates rather than parties and they are more concerned about the local than the national. If that is the broad underlying electoral behaviour of the Irish electorate and something as big as a European treaty is put before them, there is a big problem from the start.

Across member states, the Irish electorate is relatively less informed about the EU than others and they sense this. When that position is evident, fear becomes dominant as there is no benchmark on which to judge what is heard. A person has no way of knowing if A or B is right. One could do a SWOT analysis of the campaign debate and count the number of times issues which were factually incorrect were raised, and not one Irish commentator indicated they were incorrect. We need to get a grip on the accurate picture. From January there must be a broad education on what constitutes the EU and its institutions, leaving out the treaties. When there is a big debate on the Commission or something else, people will then know what is being talked about.

We need a new narrative. Ireland is now a very different country in a very different Europe facing a very different world. Given the responsibility of this sub-committee to map and consider Ireland's future in Europe, this is the beginning of a new narrative on why this small State is a member of this system and what kind of system will suit small states. It should be a system everyone will buy into so there is an absolute need for a narrative. We are gone way beyond Structural Funds.

Deputy Timmy Dooley

I thank the group for putting together a very comprehensive report. The more I read it, the fewer questions I had as there is immense detail in it. As some of my questions have already been asked, I will try not to be repetitive. Professor Laffan is right when she speaks about the fundamental lack of understanding of what the institutions within Europe are. Irish people appear to have made an effort to map their understanding of the Irish political system and overlay it on the institutions based in Brussels and consequently, one often gets the clearly erroneous equation of the Cabinet with the Commission. This permits the continuation of the perception of a bureaucracy that is not elected that makes the decisions. Moreover, it is clear that little or no credence is given to the presence on the Council of Ministers of directly-elected people who participate in the decision-making process.

We must try to regain democratic legitimacy in respect of what goes on within the Union and anything the witnesses can identify for members in that regard would be helpful. The Lisbon treaty went a long way towards so doing through the greater role for national parliaments. However, we failed to identify or sell the point that a greater level of national accountability would be brought about by the Lisbon treaty. While democratic accountability was present through the Council of Ministers, this was not perceived at a local or national level and anything the witnesses might be able to say to members in this regard would be helpful.

As for the eurosceptic agenda, a number of witnesses who appeared before the sub-committee were on the "No" side. However, they indicated clearly that they were pro-European, albeit without reference to their agenda. In some cases, people put forward specific reasons they were opposed to the treaty but not even those who have fundamental differences in opinion on the direction of the European project enunciated what that underlying agenda might be from a eurosceptic perspective. The witnesses should outline such a perspective for members.

While I am open to correction, I understand Professor Thom stated that Ireland probably was not well-served by entry into monetary union and the euro. Various witnesses who have appeared before the sub-committee, including the president of the American Chamber of Commerce Ireland, IBEC and other industry representatives, have suggested that our adoption of the euro and monetary union and presence within the euro zone have been important in attracting foreign direct investment from the United States in particular. Moreover, fluctuations in exchange rates in the past made it extremely difficult for a small country such as Ireland to compete, particularly given its need to export so much of its output. He should expand a little more on this issue.

The issue of a two-tier Europe is an academic debate at present because not much has emerged from diplomatic circles in that regard. Nevertheless, there is a perception that were we to continue to reject the Lisbon treaty by voting "No", it would not come into force and everything would remain the same. Professor Laffan has stated clearly this is not the case and that the practical requirement of the European body politic will strive to find resolution for the other 25 or 26 member states. She should comment further in this regard.

Another point was raised by Deputy Creighton, with which I do not necessarily disagree. The witnesses should highlight to members the issues that face other member states in recognising the dissatisfaction of the public with the administration or government of the day. The problem whereby citizens of Europe appear to entertain suspicions regarding what their respective member states are trying to negotiate on their behalf is commonplace. Attempts to highlight the importance and relevance of the Lisbon treaty, as well as the down side of not moving ahead with the project thus identified, will require a broader level of interaction than the Government or the Government parties acting alone.

Deputy Beverley Flynn

I welcome the witnesses and thank them for their presentation. I was interested by the comments on our lack of influence and I refer in particular to the example Professor Laffan gave regarding our current lack of influence with Germany. Representatives of the ESRI appeared before the sub-committee yesterday and put a scenario to members regarding the bank guarantee, whereby we were forced unnecessarily to extend the bank guarantee to foreign banks. This was described by the ESRI as spurious and it increased our liability by €40 billion. Deputy Creighton stated earlier that there are not many concrete examples of where Ireland has lost out in terms of its influence but this is surely one. Will our guests comment on that matter?

I am extremely interested in the concept of a mini-treaty. Professor Laffan made the point that we have lost favour with many of our European colleagues in the context of the number of seats they will win in the European elections next year. If we were in a position to be able to deal with that matter, through Parliament, it might be an opportunity for us to overcome that particular difficulty in the short term.

I am also interested in what was said about renegotiation. When the Minister for Foreign Affairs, Deputy Martin, came before the sub-committee, he dealt specifically with that matter. He was asked on radio in recent days whether he had inquired as to whether the treaty might be renegotiated. Will our guests give their views on why the latter is not possible?

Even if it were possible, we would still face the same difficulties that arose in the previous campaign in the context of how people vote in the first instance and how the idea of a new treaty might be sold to them. There is one political party which asked the Government to reaffirm that Ireland is at the centre of Europe. This is despite the fact that the party in question campaigned for a "No" vote in every European referendum since Ireland joined the then EEC. The same party has made much of our corporation tax regime — it requested an increase in corporation tax to 17.5% — and tried to discredit the fact that we have a veto. These are the types of crazy scenarios with which we would be obliged to deal when trying to sell the treaty to the people, irrespective of whether it was negotiated. Will our guests comment in that regard?

Professor Brigid Laffan

There is quite a body of academic literature on euroscepticism which distinguishes between hard eurosceptics and their softer counterparts. The hard eurosceptics are those who do not accept the system, who do not believe it to be a good idea and who argued against it since its establishment. Soft euroscepticism either involves scepticism regarding particular elements or attributes of the EU or an underlying unease in respect of the direction in which the system is going.

One finds euroscepticism on both the left and the right. Euroscepticism of the right wants a deregulated market and weak regulation at European level and is anti-immigration in nature. This form of scepticism favours the market but does not like anything political and is fundamentally anti-immigration. Euroscepticism of the left tends towards a belief that the EU is not sufficiently regulated and that social supports are not strong enough. In other words, it seeks government at European level. The Europe available to us can never be those models favoured by either the extreme left or the extreme right. Europe is a centrist project and moves marginally centre-left or centre-right. This is because it is negotiated across so many states and so many political forces.

I do not know what the term "pro-European" means. It is meaningless in analytical terms because everyone has issues with regard to particular elements of the EU. It is interesting that eurosceptics in the UK do not hide their euroscepticism. The UK Independence Party and the Tory right like to say that they are eurosceptic. In Ireland one cannot say that because the electorate tends to understand that the country needs to be in the EU at some level. One tends, therefore, to come across people who say they are not eurosceptic and claim they are pro-European but that they do not like Europe in its current form. This is an interesting phenomenon and it tells us something about Ireland in Europe.

The difficulty with renegotiation is that, by definition, negotiation means that there will be other people around the table. There is no one available at present who will sit at the table and discuss the treaty with us. There is also a critically important democratic point, namely, that many of the parliaments of other member states overwhelmingly ratified the Lisbon treaty. No government can renegotiate what its parliament has ratified without first returning to that parliament on the matter. There is a notion that the other member states are available to join Ireland in a renegotiation. However, they are not willing to sit at the table. Whether we ask them to sit with us is immaterial. They have stated publicly they are unwilling to sit around the table. Therefore, there is no option at this stage. Renegotiation is a phantom, a kite that is flying. It needs to be taken down, but that is not going to happen at this juncture.

Professor Daniel Thomas

With regard to the public perception of the non-democratic European Union and the eurocrats who are running things, having spent a year working at the European Commission, I can tell the sub-committee that people there are keenly aware of how little power they have. There are eurosceptics and more euro-enthusiasts, or whatever one wants to call them. Regardless of where they fall on the spectrum, everyone within the Commission is keenly aware that it is the governments within the Council and the Parliament which make the decisions, yet there is a public perception, not only in Ireland but across Europe, that the Commission is a driver controlling our lives. It is ironic that this is not how things are viewed from inside the Commission.

Dr. Gavin Barrett

I reiterate what Professor Laffan said about the eurosceptic agenda. There is euroscepticism in Ireland but it tends not to be articulated as such. People are eurosceptical but do not admit it. This is true even of some of its leading players. An interesting phenomenon emerged during the recent referendum campaign. There was a hardline Catholic euroscepticism. Some of the stuff about the European Union in Alive magazine which is distributed in churches was extraordinary. The general approach of the hierarchy is broadly favourable to European integration, but with reservations. That is one element of euroscepticism. There is also a hardline left-wing opposition to European integration, much of which remained in the background during the Lisbon treaty referendum. One was not made aware of the political perspectives of people contributing to the debate. If one had been, those contributors might have been less acceptable to the population as a whole.

Many voted "No" to the Treaty of Lisbon because they considered things were all right as they were and thought that if they voted "No", they would remain so. That made as much sense as trying to maintain the same position in the middle of an ocean when a boat was moving. If we wanted to maintain our position in the European Union, broadly, the best thing was to support the treaty which is not very radical. Mr. Peter Sutherland made this point at the National Forum on Europe. There are some innovations in it and it does take integration forward. However, it is not hugely radical, which contributed to making it a difficult sell.

Deputy Flynn raised the question of the bank guarantee. I am not sure the argument is spurious. There were legal aspects to it. It was very important that the Irish scheme did not violate Community state aid laws, which are designed to stop member states assisting their own industries. A political issue arose regarding giving Irish banks a huge competitive advantage over their competitors.

The mini treaty option is dealt with in our paper, but I would not like to overstate the acceptability of that approach. In a sense, the Treaty of Lisbon resembles a cathedral of matchsticks. If one pulls one element out of it, the whole thing collapses. One might offer to accept a mini treaty, removing particular chunks of the Treaty of Lisbon, only to find that those chunks were attached to others. A concession granted to Ireland by another member state might affect another granted to that state by a third. A mini treaty approach might earn Ireland some goodwill, but whether it would be accepted is another matter.

I have only one point to add to what Professor Laffan said about renegotiation. In order to open an intergovernmental conference on renegotiating a treaty one needs a numerical majority of the other member states. Clearly, there is no such majority in Europe.

Professor Rodney Thom

To answer questions on the common currency, the European Central Bank is efficient and runs monetary policy in the interests of the euro zone, not those of any country or group of countries. No country has control over the ECB. It is the most independent central bank on the planet.

We are in the ninth year of the euro, but most of the ECB's policy during that period has not been optimal from an Irish point of view. Given that we are facing an important recession, we want a weaker and more competitive currency and lower interest rates. The common currency provides the opposite. When the euro emerged as a weak currency and fell to nearly 80 cent against the dollar in its early years, the Irish economy was growing rapidly. The weak currency and the low interest rates of the early years fuelled a rising property boom. Had we been outside the eurozone and possessed a stronger currency and higher interest rates, the current problems would be less severe. This is undeniable.

Regarding foreign direct investment, the common currency is to the benefit of those who operate in Ireland and export into the euro system. However, this is not a strong argument. Countries outside the euro system, such as the UK, have been successful in attracting foreign investment. From 1993 to the introduction of the euro in 1999, the old European monetary system moved to wide 15% fluctuation bands, effectively a flexible exchange rate system. Ireland took great advantage of this system and operated a flexible exchange rate policy well. It targeted an average rate between the deutschmark, sterling and, to a lesser extent, the dollar. This was the most successful period in Irish economic history and coincided with a considerable influx in FDI.

I am not being eurosceptical, but we must occasionally hold our hands up and ask whether it was the right decision from an economic perspective. It is undeniable that our decision to enter the euro was 100% political. After the decision was taken, the Government commissioned a report on its economic implications and one can guess what the report found.

Chairman

I will shortly allow in my two colleagues who are signalling. Before doing so, I have some questions. I was struck by Professor Thom's analysis and questioning of the euro's benefits to Ireland. Is it not the case that, were we outside the eurozone, the punt would be subject to the type of capital flows and speculation seen in Iceland and elsewhere?

Just because a decision is political does not mean that it has not been made in the interests of the country. Clearly, those involved considered the economic costs and benefits and decided that joining the euro would in the nation's interests.

Professor Rodney Thom

Some 300 students will be waiting for me at noon. Had we stayed outside the euro zone — I am not advocating that we leave, as that would be silly — what would have occurred to our currency? It would have depended on how well the economy was managed. Had it been managed in the same way as during the 1993-99 period, we would have been fine.

Chairman

Was there not a significant change between 1993 and 1999?

Professor Rodney Thom

A speculator can only attack if there is something to attack. When we did away with the old narrow band exchange rate system in 1993, speculation stopped. It could be that the punt would be weaker than sterling or the euro. I will put it differently. The Irish currency would be at a competitive level which is more suitable for the current problems faced by the Irish economy.

Chairman

Would Professor Thom also accept that there would be a speculation risk?

Professor Rodney Thom

One can only speculate on that. It depends on the exchange rate policy we choose to run. If we run a fixed exchange rate policy against the euro and then the country goes into a recession, we would set up a target for speculators to attack. The currency crisis of 1992 and early 1993 was due to the fact that we had a fixed exchange rate, more or less, against the Deutschmark. Once we went to the very wide 15% bands in 1993, which in principle permitted a 30% movement against the Deutschmark, the problem of speculation went away. In essence, the speculator had nothing to attack any more.

Chairman

Does Professor Thom think the credibility of a small country in defending a currency strategy is less than it is when we have the weight of the European Central Bank and large nation states behind us?

Professor Rodney Thom

No, why should that be the case? During that period in the early 1990s we managed our affairs superbly well and our policy was perceived as being very credible.

Chairman

Let us move on to other matters. Professor Laffan made the point, reiterated by Dr. Barrett, that renegotiation of the treaty is not an option. However, one of the conclusions I drew from Dr. Barrett's paper was that agreement to protocols would constitute an act of renegotiation because it would need the agreement of the other member states. In that context, is Dr. Barrett ruling out the possibility of protocols in certain areas being delivered, given that both he and Professor Laffan have emphatically said that there is no appetite for renegotiation?

Dr. Gavin Barrett

We must distinguish general renegotiation from marginal renegotiation. We must also distinguish renegotiation with regard to Ireland's position from renegotiation generally. In ruling out renegotiation as a whole, I refer to renegotiation of the corpus of the Lisbon treaty, for which there is clearly no appetite.

Chairman

Dr. Barrett says that from a protocol point of view, both the capacity and the appetite exists at EU level.

Dr. Gavin Barrett

The adoption of protocols relating to the Irish position is more realistic than renegotiation of the treaty. The latter is wholly unrealistic and will not happen. That said, how realistic is the question of negotiating protocols in relation to Ireland? That depends on several issues. Protocols would have to be ratified——

Chairman

I ask members to be quiet. I am trying to listen to Dr. Barrett.

Dr. Gavin Barrett

Some protocols may not be covered by the existing ratification in each member state. That would be a question for the legal system of each member state. Any protocols not covered by the pre-existing ratification would have to be ratified in other member states, which might cause political difficulties for those states and might lead them to reject the option of renegotiating protocols. We would need the agreement of every member state in that regard. States must either have the protocols covered by their existing ratification or else re-ratify the treaty, which might meet with resistance. It is interesting that the Danish solution in that regard in 1992 did not consist of protocols amending the treaties but of a decision. That decision, when legally analysed, seems to be, in effect, a new treaty or at least a treaty standing outside the constitutive treaties of the EU. If protocols prove to be impossible in relation to Ireland, it might be possible to opt instead for a decision. However, decisions cannot amend existing treaties.

Chairman

I want to clarify Dr. Barrett's testimony, as he has made some very strong points. First, protocols could constitute a form of renegotiation and second, renegotiation of the treaty itself is not an option.

Dr. Gavin Barrett

Correct.

Chairman

However, the negotiation of protocols specific to Ireland may be an option.

Dr. Gavin Barrett

It is not guaranteed but it might be an option, depending on how the other member states react to such a proposal. As I am not involved in the negotiations, I cannot possibly know what might happen.

Chairman

Furthermore, the decision taken by Denmark may be a way of moving forward.

Dr. Gavin Barrett

Yes. It is a way of getting commitments which are legally binding in international law but do not amend existing treaties.

Chairman

Perhaps Dr. Barrett will explain again the difference between a decision and a protocol.

Dr. Gavin Barrett

For all the difference it makes, a protocol is similar to a codicil to a will. It is like an extra provision which is not included in the treaties. A decision is an unidentified legal object introduced into the legal system at Maastricht. It is an agreement by the member states at the European Council rather than a decision of the European Council. The best legal analysis which was provided by Professor Deirdre Curtin who has previously appeared before a committee of the Oireachtas was that it looked like an international treaty provision in that it met the standards stipulated under Article 11 of the Vienna Convention on the Law of Treaties and was, therefore, a legally binding treaty. However, it did not amend existing treaties. The decision by the European Court of Justice in the Defrenne II case indicates it could not possibly have amended existing treaties. Nonetheless, it was legally binding in international law and the Danes went to the trouble of registering it with the United Nations just to hammer home the point that it was.

Chairman

It is a mini treaty agreed within the European Council.

Dr. Gavin Barrett

It was agreed by member states in the European Council. It should be seen as a measure floating outside acquis communautaire or the corpus of EU law.

Chairman

It does not require parliamentary ratification by other member states.

Dr. Gavin Barrett

The actual decision adopted by the member states in the European Council at Maastricht was not ratified. One could argue it should have been but it was not. It was viewed by everyone as being binding in international law.

Chairman

Deputy Costello has identified four issues that have arisen in the debate so far, namely, the protection of workers' rights, the objective of ensuring our neutrality is protected, dealing with the so-called sensitive social issues and the maintenance of tax sovereignty. He has asked — he can correct me if I am wrong — if it is possible to identify a mechanism by which each of these objectives can be delivered. Will Dr. Barrett respond setting out the position on each of the issues identified? Also, what would he see as being the strongest legal mechanism to address these four objectives?

Dr. Gavin Barrett

I must preface my answer by saying I am not sure there is a legal need to address any of the issues mentioned. It is important to point out that there are issues which are political and others which are legal. For instance, I do not believe our neutrality is threatened by the Lisbon treaty.

Chairman

That is fine. Dr. Barrett can factor that point in in his answer. If he believes there is not a legal need to address any of these issues, what would be the way to address political issues?

Dr. Gavin Barrett

One could say it is not actually necessary to do so. On the other hand, that does not prevent one dealing with matters. To an extent, that is what happened with the Danes. When one considers what they did and what is contained in the decision, one will note they did not actually alter their position.

One can have decisions on all of these issues. One can decide to deal with them, even if it is not necessary, legally, to do so. One could have a unanimous political declaration on the part of member states on workers' rights, that they would seek to advance particular proposals already made at European level and, in particular, a commitment to revisit the posted workers directive which was at the core of the Viking and Laval controversy as well as the Rüffert case.

Deputy Joe Costello

Does Dr. Barrett think that would pose a problem with a country such as the United Kingdom which is opting out of the Charter of Fundamental Rights largely on the basis of its commitment to workers' rights?

Dr. Gavin Barrett

One would have to see if one could get it. It is all subject to the requirements of what is politically possible. One has a Labour Government in power in the United Kingdom. Therefore, one's chances would be undoubtedly better than they would be with a Conservative Government in power. As to whether it would commit itself to revisit the posted workers directive, I do not know but I think it would. I cannot say for definite, but especially in the wake of the Viking and Laval decisions, there probably would be an appetite to look at that measure again. That is my take on the matter.

Reference was made to neutrality. Defence matters were addressed in the decision the Danes had agreed in 1992. One could have a decision confirming that nothing in the treaties affected Irish neutrality. The decision would be legally binding in international law but would not change anything already in the treaties. From what I can see, it would not seem to affect Irish neutrality but perhaps it might be of value to have a legally binding decision in that regard confirming that it would not and confirming the opinion of all member states that it would not do so.

The maintenance of tax sovereignty is guaranteed by unanimity in all of the relevant provisions at European level. The argument made on Article 48 being used to undermine this is spurious because that article requires unanimity. Again, that does not stop one having a confirmatory decision entered to state nothing in the treaties affects Ireland's veto in taxation matters. One might have to formulate it in a particular way to make it accurately reflect what is contained in the treaties but it could be done.

I take it that social issues include such matters as abortion.

Chairman

Yes.

Dr. Gavin Barrett

There is nothing to stop one including something like that in a decision. There is a difficulty in the sense that when one legally analyses the treaties, they do not give rise to dangers but if there is a perception that they do, there is no harm in entering an additional legal commitment to the effect that they will not do so.

Chairman

I have one final question before I hand over to Deputies Timmins and Costello. Would the legal instrument to which Mr. Barrett referred to deal with the points at issue be a protocol, or could it be a decision? What would be the benefit of either approach?

Dr. Gavin Barrett

A decision has been described by Professor Deirdre Curtin as an international agreement in simplified form. It does not affect or amend existing treaties. A protocol is like a codicil. Going by precedent with the Danish protocol, it would not require ratification, although there is an argument as to whether that would be the case. The Danish protocol was never ratified and member states generally accept it is legally binding. A protocol would not amend anything in the treaties but would be a belt and braces approach, an additional legal commitment, which would bind member states, and the breach of which could result in the member state being brought by another before the International Court of Justice and condemned for being in breach of international law. The difficulty with entering a protocol that involves an amendment of the treaties is that it could involve ratification by whatever national process is required in each of the member states.

Chairman

What would be the appropriate vehicle for delivering these declarations?

Dr. Gavin Barrett

It would depend on whether there was a willingness on the part of the other member states to ratify a protocol. In the absence of such a willingness, a decision would be the appropriate means of proceeding.

Deputy Billy Timmins

I thank Dr. Barrett for the paper he submitted yesterday. I am sorry I did not hear the delegates' contributions but I could not be present.

Do the delegates believe there should be a mechanism in Ireland to refer the Lisbon treaty or any treaty to a constitutional court for a view on whether there should be a referendum? One of our weaknesses at present is that we are not in a position to state what parts of the treaty require a referendum unless it ends up in the Supreme Court. Does Dr. Barrett believe it would be helpful to amend the Constitution to have such a mechanism in place? I am not referring specifically to the Lisbon treaty.

If a second referendum were to take place, what areas could be covered by a separate question, bearing in mind that we have an opt-out in regard to judicial and home affairs? Could the same be achieved with regard to the Common Foreign and Security Policy? I am not sure but my view is that it could not because the Charter of Fundamental Rights is an integral part of the Lisbon treaty at present.

Every member of the committee has expressed opposition to the option to opt out with regard to judicial and home affairs. Can it be established who exactly was in favour of our opting out? The Minister for Justice, Equality and Law Reform has been invited to attend in this regard. We are inclined to blame the Law Library of Ireland but I have not heard any organisation stating the reasons we should have an opt-out for the three-year period, nor have I read any paper to that effect.

Dr. Gavin Barrett

On the question of whether we should have a mechanism for referring a treaty to a constitutional court to determine whether a referendum is required, we do have such a mechanism. The Article 26 procedure entitles the President to refer the question to the Supreme Court. It is obviously an absolute discretion on the part of the President. She would take the advice of the Council of State in this regard and it would ultimately be her decision.

Deputy Billy Timmins

We are not in a position to refer the Lisbon treaty at present. Could it have been achieved before the legislation was signed? Can the Government now ask the Supreme Court to adjudicate on the Lisbon treaty?

Dr. Gavin Barrett

There is one way in which it could be done, although I am not sure how politically feasible it would be. One could produce legislation that would ratify the entirety of the treaty by Parliament and incorporate it into Irish law. It would be adopted as a Bill until it would reach the President and she would refer it to the Supreme Court, which would then pronounce on its constitutionality. I presume it would identify particular provisions in the treaty that raise constitutional objections. A referendum would be held on those objections. Perhaps this procedure could be used if the Government expressed the view in advance that it was adopting legislation through Parliament to incorporate the terms of the Lisbon treaty into Irish law to obtain the view of the Supreme Court. Legally this would be possible but I do not know if it would be possible politically.

The Deputy is asking whether it should be possible for the Government to refer matters to the Supreme Court rather than the President. There is an arguable case for it. The Government would lose control to a certain extent although I would expect the President to be sympathetic to arguments by the Council of State in favour of referring such a Bill to the Supreme Court. The President would have absolute discretion.

On the question of the mechanism applying to opt-outs, I presume one would ask whether one wished to approve amendment No. 1 to the Constitution, which amendment would relate to justice and home affairs, and No. 2, which would refer to Common Foreign and Security Policy, etc. This would be the mechanism. One might remember the referenda on abortion some years ago; three questions were put on the same day.

Deputy Billy Timmins

That could be done.

Dr. Gavin Barrett

Yes.

Deputy Billy Timmins

However, could a question be included on whether one is in favour of the Charter of Fundamental Rights?

Dr. Gavin Barrett

It would be possible to have a constitutional referendum though to think offhand of wording for it is a difficult exercise. Perhaps: "The State proposes to incorporate into", or "The State may accede to those provisions of the Treaty of Lisbon that refer to the Charter of Fundamental Rights." It would be something like that. To be honest, I did not come prepared to answer that particular question and would have to think more about it.

There certainly are mechanisms whereby one might address individual elements of the Treaty of Lisbon in constitutional referendums. I have no doubt about that. With regard to aspects that were rejected in a referendum, we would have to get from the other member states protocols whereby Ireland might opt out. We would then ratify the entirety of the treaty but opt out of the particular provisions that had been objected to by the population in referendum, whatever the wording of that referendum might be. Does that answer the Deputy's question?

Deputy Billy Timmins

Yes.

Dr. Gavin Barrett

There was the matter of responsibility in terms of opting out from the justice and home affairs area. Historically speaking, that originated with the effort to maintain the common travel area in the Treaty of Amsterdam. It was felt that there was a basic willingness on the part of Ireland to opt into free movement and the Schengen arrangements throughout Europe. However, it was felt that this was the case in a situation where most of the travel from Ireland either goes to or passes through the United Kingdom. The figures are approximately 70%.

In reality it was impossible for us to jeopardise the common travel area. For those reasons, we opted out from free movement and abolition of border control provisions at European level. A declaration was appended to prior treaties by the Treaty of Amsterdam that stated we would opt into everything that did not involve jeopardising the common travel area. That has not really been followed through but, of course, declarations are not legally binding.

Regarding the opt out-opt in arrangement negotiated at the Treaty of Lisbon, a statement was made by the then Minister for Foreign Affairs, Deputy Micheál Martin, in that regard. He said the reason for having that particular arrangement was that it was felt that Ireland would have remained the only common law jurisdiction in that particular field. The British had already agreed their own opt-out arrangement with regard to it and he did not wish Ireland to be the only common law country negotiating such matters. I do not know whether that justification was a sufficient one for having opted out. There may have been political factors.

I believe there is a body of opinion, most likely in the Law Library, that is not enchanted with the idea of further integration in that particular area. Perhaps that had something to do with it but I do not know. It may be an unstated factor but the reason given was the risks involved in being the only common law country agreeing to justice and home affairs matters. The risks of being a country that had opted out of something were not given so much importance.

Deputy Joe Costello

On that point, is there not also a proposal or provision within justice and home affairs whereby a European-wide prosecutor would be established? In the manner in which the business would be dealt with, it would be totally in conflict with the Republic's independent system of direct prosecutions. That would presumably be difficult to translate into practice.

We may temporarily forget about the Lisbon treaty referendum and look at the present scenario whereby we move towards the European elections in June. Can Dr. Barrett assist us by teasing out the implications of the referendum and the difficulties for the other member states? We heard already from Professor Laffan that 12 member states will lose a number of MEPs. Obviously the Commission will be reduced in number. If that were to happen what are the difficulties and how might we address them?

Dr. Barrett mentioned the Edinburgh summit as providing general measures at sub-treaty level. Will he elaborate and give some examples? How were they applied?

We have not really discussed immigration which was quite a subtext during the referendum campaign. The European Union is now proceeding along the lines of having a common immigration policy. Is there a mechanism whereby we can address that?

We did not discuss the question of Ireland's desire to have a Commissioner at all times. I presume this issue could not be addressed by protocol or decision. Would this be done by declaration in the event that it was agreed among member states?

Dr. Gavin Barrett

The Deputy is referring to the issue of the Commissioner.

Deputy Joe Costello

Yes. What declaratory mechanism would be required if there was a change of tack and it was decided that every country would have a Commissioner?

Dr. Gavin Barrett

On the proposal to establish a European public prosecutor, the mechanism which would be used to do this would be unanimity. In other words, even if we had opted in to the justice and home affairs area in its entirety, we would still have a veto in relation to that decision and how exactly the European public prosecutor would be established. I do not believe that, in itself, constituted a justification for opting out of the justice and home affairs area. I agree, however, that it was mentioned frequently. It was agreed by the member states on condition that it would be agreed by unanimity. We had, therefore, adequate protection on the issue.

On the question of how to address the loss of MEPs by 12 member states, apart from ratifying the Lisbon treaty, which does not appear possible, the only other way to do so would be to have a kind of mini-treaty, if one likes, addressing that question and others such as the reweighting of votes at European level. This could be effected by parliamentary ratification in this country, the reason being that we have had a succession of accession treaties which have altered the number of parliamentarians that countries have. When Germany unified, the number of German MEPs was altered to take account of the fact that the country had become bigger. The number of MEPs countries has changed several times during the years without a constitutional referendum taking place. While the point was never challenged in a court case, given that it has happened so often, there would be a strong argument that it would not involve a constitutional referendum. I do not believe anyone was particularly worried about states having extra MEPs.

Deputy Joe Costello

Let us take the scenario with regard to Spain which is due four additional MEPs. Elections to the European Parliament will be held in June without provision being made for additional MEPs. How will it be possible to retrospectively provide for the increase in the number of Spanish MEPs in the event that the Lisbon treaty is ratified at a later date? Is a mechanism available for doing so?

Dr. Gavin Barrett

I am not aware of any such mechanism, although I may be incorrect in that regard. A treaty amendment would be required.

Deputy Joe Costello

The Spaniards would have to agree to such an amendment.

Dr. Gavin Barrett

Yes, all the other member states would also have to agree to it. That would be the way to do it.

Professor Daniel Thomas

Perhaps one would just wait until the next election.

Deputy Joe Costello

The additional MEPs would be lost for the period until another election was held. That would be a hard pill to swallow when one considers the lengthy negotiations involved in securing the additional MEPs.

Dr. Gavin Barrett

The issue is certainly problematic for the member states in question. I understand the Spanish feel particularly hard done by.

The Deputy asked me, with regard to the conclusions reached at the Edinburgh summit, about sub-treaty elements which were agreed. While everyone focuses attention on part B of the conclusions reached at the Edinburgh summit, part A listed a series of matters in annexes which had been discussed as part of the Danish national compromise reached after the first Danish referendum result. This compromise was a form of agreement between "Yes" and "No" voters on what they considered to be the priorities in terms of Denmark's interests. The items contained in the annexes included guidelines for implementation of the subsidiarity principle, measures proposed to increase transparency in Community decision making and a plan of action to promote growth and combat unemployment. Measures were subsequently taken on foot of these annexes.

These are the things that could be done. Some of the concerns raised in the Irish referendum would be shared by the other member states and there would be a willingness to envisage further measures being taken in that regard. Part of the package one could envisage coming out of a European Council meeting in December would include a similar annex of proposals that would concern the European Union as a whole and which could be examined at European level, perhaps related to unemployment, transparency and increased democracy.

Deputy Joe Costello

It is a question of their standing. Are these, in effect, gentlemen's agreements?

Mr. Gavin Barrett

They are political commitments, but not legally binding, to look at the possibility of legislation in that regard.

Looking at the Danish precedent, there was a unilateral declaration in Annexe 3 of Part B of the conclusions of the Edinburgh Summit which mentioned that the citizenship provisions did not give nationals from other member states rights to Danish citizenship. That might be one way of dealing with it — declarations establishing what the immigration law and policy do or do do at the moment. Perhaps that might be of some use in that regard.

As regards how the Commissioner question is to be solved, the procedures in the Treaty of Lisbon provide for a unanimous Council Decision in relation to reversing the reduction in the size of the Commission. I image that will involve a declaration by all member states, undertaking that as soon as the Treaty of Lisbon comes into force, the Council meeting will take place and the number of Commissioners shall be fixed at one per member state.

Deputy Joe Costello

In terms of the elections in June 2009, there is the difficulty with the MEPs, but also a difficulty as regards the Commission, as we are operating under the old Nice dispensation.

Mr. Gavin Barrett

I understand the issue of the Commission comes up in November rather than June. It might be possible to postpone the appointment of the new Commission for a while, but I am not entirely sure about that. The general position is that once the Commission is appointed, under the existing rules unless they are replaced, it must be reduced in size. We must have a unanimous decision as to the exact size of the reduction, but it is indisputable that there must be a reduction in the size of the Commission. It would not be open to Ireland to attend that meeting and say it was vetoing any reduction of the Commission. That would be a clear violation of our duty of loyal and sincere co-operation with the other member states, since we had agreed at Nice that there would be a reduction in the size of the Commission.

Deputy Joe Costello

It has to be a new Commission and there cannot be an extension of the old one.

Mr. Gavin Barrett

It might be possible, temporarily, to keep the existing Commission there. I am not entirely sure in that regard, but that situation certainly could not continue indefinitely. The treaties provide for a five-year term for the Commission. That expires in November 2009. In principle, at that stage it must be replaced and it has to be reduced.

Chairman

I first want to comment on the status of the paper prepared for us by UCD in light of a point that Senator de Búrca made. Through the clerk, I had a number of discussions with the centre regarding the terms on which it was prepared to do this work for us. I want to put on record one of the terms and I shall read from the letter on which we agreed:

The Sub-committee have also agreed that the discussion paper will remain the property of the authors, but that it cannot be published by them until after this Sub-committee has reported.

We are due to report by 27 November 2008. I raise this point in light of the question regarding the distribution of the paper. It is the property of the authors at the moment, and they have agreed to wait until the sub-committee's report is published before they will publish it themselves.

Mr. Gavin Barrett

That is correct.

Mr. Daniel Thomas

That is understood.

Chairman

In the light of the request made by Senator de Búrca, I just want to clarify that at the moment the paper is the property of the authors.

Mr. Gavin Barrett

That is all right and if the sub-committee wishes us to publicise it in advance ——

Chairman

We should prefer not, because we have a large variety of different contributions at the moment. The original agreement we made is fair to both parties. I thank the delegates for the work they have done. It has been a wonderful contribution to our proceedings. I would be grateful if they would pass on our thanks to their two colleagues.

The sub-committee went into private session at 12.10 p.m. Sitting suspended at 12.35 p.m. and resumed at 2.10 p.m.

Chairman

I welcome Ms Margot Wallström, Vice-President of the European Commission to our discussion and this meeting of our sub-committee.

Before we begin the formal part of our discussion, I will give some background as to why we are here and the reason we have invited Ms Wallström to attend. The sub-committee was set up to examine Ireland's future in the European Union in the context of the Lisbon referendum result. We have four terms of reference and we have turned each of these into a work module. The module we are considering today is the public understanding of the European Union and the measures we and everybody involved can take to improve that understanding of the Union and its institutions. All members of the sub-committee have identified this as being crucial in moving forward our relationship with the European Union.

Ms Wallström plays a vital role in Europe and that is the reason we have invited her and are grateful for her contribution. We are organising our business so that we have it completed by the end of November, having started at the beginning of October. We manage our business as rigorously as we can to keep within our schedule. We will hand over to Ms Wallström for ten minutes so she can take us through her main points. I thank her for her comments, which have been circulated. When she has completed her presentation, I will hand over to each group represented here. Each group will have one speaker who will have ten minutes to put questions to Ms Wallström. She may answer and spokespersons can put any follow-up questions. After that, I will open up the debate to anybody who has not spoken, for six minutes per person. At the end, everybody will have an opportunity to put a follow-up question. We want to generate as much dialogue and discussion as we can.

Before I hand over to Ms Wallström I must draw her attention to the fact that members of the committee have absolute privilege, but the same does not apply to her. I welcome Ms Wallström and her colleagues and thank her for attending.

Ms Margot Wallström

Thank you. I am delighted to have been invited to this special sub-committee today.

Much has changed since I spoke to the Joint Committee on European Affairs in February, and not just because of the referendum result. We have been facing new challenges, from dealing with the security problems in the Caucasus to finding a response to the financial crisis, the full force of which hit all of us this autumn. In this new context, I want to make a few remarks on three questions, namely, why I still believe we need the new treaty, why I think the referendum result was an answer but not a solution, and why we must work together to find a constructive way forward.

In my discussions with friends, colleagues and parliamentarians across Europe, whether in France or Lithuania, their reaction to the referendum result has been one of puzzlement and surprise. They wonder why the Irish would reject a treaty that is focused on improving the democracy and efficiency of EU decision-making. The Irish are known as committed Europeans. Even the 1916 Proclamation referred to “gallant allies in Europe”. Ireland has been the role model for small European countries in the EU, especially in the new member states. We have all admired the economic progress made by Ireland as an EU member. It has shown the influence a small country can have on the policy making of the Union. Why would a country whose past, present and future are so bound up with Europe be the one to say “No” to a treaty that would equip us for the coming century?

I am sure members are aware of the case for the new treaty. Lisbon would give more of a say to national parliaments, provide openness in the Council on how Ministers have voted, increase the number of laws that pass through the elected European Parliament and result in new forms of democracy, such the citizen's initiative which means that if 1 million signatures are added to a request to change EU law the matter would have to be considered. This is the kind of democratic approach that people rightly expect from the EU, the decisions of which have a direct impact on its citizens. It also makes sense to have a more efficient EU. A permanent president of the European Council, a clear division of roles in foreign policy and more majority voting would make our enlarged EU of 27 member states work better.

Of course, we are not paralysed in the absence of the treaty. We have been able to respond effectively to the crisis in Georgia and have thus far shown the ability to take strong and co-ordinated action in response to the financial crisis. However, being able to run with an arm tied behind one's back does not mean it would not be better to untie the arm. Most people see the events of recent months as pointing to a need for more rather than less Europe. In these difficult times, we need to work together more closely, and the treaty would help us to do so.

I am aware that a number of concerns were expressed during the debate on the referendum but in sensitive areas of national sovereignty such as taxation the national veto will be kept and on defence policy and nothing in the Lisbon treaty is going to touch the triple lock on the deployment of Irish peacekeepers. The treaty also leaves open the possibility that the EU will choose to retain a Commissioner from every member state, which is not possible under today's rules. Without the Lisbon treaty, EU action will be hamstrung by heavier procedures and less clarity about what we can do. That will result in a less effective response on issues of concern to citizens, such as climate change and energy policy, migration and combating organised crime and terrorism. This is how the other member states and parliaments across the EU view the treaty. After eight years of negotiations, it has now been ratified by 24 member states. Members will understand, therefore, why the Irish "No" is viewed with disappointment. It affects all the member states which have invested energy and political capital into a long and difficult negotiation process. This is why I view the Irish "No" as an answer but not a solution.

This sub-committee's deliberations are being followed with interest because the rest of Europe is waiting patiently to know how we can build a solution with which everyone, including Ireland, can be satisfied. Nobody wants to see Ireland left out in the cold. I have publicly stated that other EU countries should give Ireland the necessary time to decide on the next steps and avoid putting unnecessary pressure on the Irish Government. The sub-committee holds the key to finding a solution for the whole of Europe but this will require defining where Ireland's misgivings lie. The timetable of the sub-committee, which will conclude its work before the December Council meeting, is an important signal that Ireland recognises the urgency of the task, especially with next June's European elections on the horizon.

In regard to how I think we need to approach a solution, one thing is clear. This is not a matter that can be settled by diplomats or politicians. It needs the engagement of the Irish people: the families who according to the polls felt they lacked information and understanding about the treaty; the women and young people who felt alienated and unsure; and the socially excluded who felt that they did not have enough of a stake in change. In the absence of clear information and communication, such fears and concerns can only grow. I am convinced that reaching a solution must involve better mutual communication on Europe. This means learning lessons on reaching out to a wider audience and using different media, including the Internet. We will only identify what needs to be done if we are able to listen and respond to people's concerns.

Ever since the "No" votes to the constitution in France and the Netherlands in 2005, the Commission has been looking at how communication on Europe could be improved. Modernising the Commission's approach has been a central part of my work during this period. We have already come a long way.

However, communication can never work top-down from Brussels. It must mean national and local authorities and stakeholders getting involved. It must mean a more imaginative approach and it must mean listening and dialogue, not just providing a one-way traffic of information.

I hope the work of this sub-committee will play an important part in stimulating such a debate on Europe and on the treaty. I thank the sub-committee for giving me the chance to contribute through our discussion.

Chairman

I thank Ms Wallström for her contribution. We will hear contributions from the Fianna Fáil group, the Independent group, Fine Gael and Labour.

Deputy Timmy Dooley

I welcome Commissioner Wallström, who I am delighted to see return. As a member of the Joint Committee on European Affairs, I had the opportunity to tease through some of these matters with her before. Her presence is particularly helpful at this juncture of our work, considering the level of interaction we have had with stakeholders and groups that have a view on Ireland's participation in Europe.

I will stick specifically to Commissioner Wallström's area of competence, communications. Commissioner Wallström set out the difficulties and stated that communication cannot be from the top down. Part of the problem relates to misunderstanding of the institutions in Brussels. In some discussions, it is clear that some perceive the existence of a bureaucracy that operates to some European agenda and does not have the level of interaction that our citizens might expect. Part of the difficulty is that citizens try to overlay what they understand of their national structure and apply it to the Brussels structures. That equates the Cabinet with the Commission, which it is clearly not. The role of the Commission is misunderstood by many people. There is a belief that because the Commission is not directly elected, it is not as close to the citizen as it might be if it was. The point many people miss is that decisions are taken with the Council of Europe or the Council of Ministers and that there is a national representative and a body of civil servants working on these issues.

That raised its head in the Lisbon debate because of a belief about loss of influence. On the one hand we had people saying they wanted fewer directives from Brussels but more Commissioners. The two do not sit well with me because if one wants to reduce the influence of the Commission, the best way is to reduce the number of Commissioners. People accepted the argument when it was teased through and understood the necessity to keep a tighter Commission. Notwithstanding that, the Millward Brown IMS research indicated belief of a loss of influence in the absence of a permanent Commissioner. We must communicate better in terms of what happens within institutions and how they are configured so that people can understand their exact role.

What efforts is Ms Wallström making to target the tabloid media? She referred to electronic media and is correct in doing so. We must target women and young people because both groups took a negative position according to the research. I am interested in how Ms Wallström might use the tabloid media, representatives from the national media, RTE and The Irish Times. This is a relatively small cohort in terms of how it targets its group. We must examine this.

Perhaps Ms Wallström can comment on the role of the national parliament and give us some direction on what we should do to communicate the European agenda. In trying to win the debate on Europe, it is much easier to peddle bad news. Those who sought to bring in extraneous issues, which formed no part of the treaty, found it easier to get the message out because they packaged it very well. One can do that particularly in regard to the notion of a European army, conscription and all the negatives that were put forward. Other believed that ratification of the Lisbon treaty would make it easier to procure abortion in this country, notwithstanding the protocol that exists in that regard. There is also the protocol on neutrality under the Seville Declaration. Notwithstanding all that, we clearly lost the communications battle.

Ms Margot Wallström

These are all valid and legitimate questions. The issue of what has been called "the blame game" between the institutions was touched upon. It is also easy for us in the Commission to say that this is the fault of the member states. The opposite is also true when members states blame Brussels because then it becomes a faceless bureaucracy that makes decisions that are totally crazy. We have to avoid this blame game because we all lose from engaging in it. The citizens lose out most because they do not get adequate and correct information about what is going on.

The basis for any communication is a right for citizens to know what is happening. That is my starting point. It is not propaganda — that will not work. This is not about us from top down trying to impose on people information or giving them a great deal of documentation to read. This is about the citizens' right to know what is happening. That requires an approach that also allows for civic education. That is where it must start. People have to understand what goes on, what the EU is and what it does.

It also involves the media, which play an important role. Today most people get information about the EU from radio and television broadcasts, but young people also use the Internet. The significance of the latter is illustrated by what happened in the American election where the Internet determined the outcome. Therefore we have to do more in that respect. That is why we have also upgraded our EUROPA website and why we are working much more via the Internet to reach out especially to young people. Those who have teenagers know that they barely read an ordinary newspaper; they get their news form the Internet. Therefore, we have to work on that.

How do we solve this problem of the blame game? We have tried to put in place at the European level a partnership on communication. We have a political declaration we have solemnly signed for the three institutions to work, plan, prioritise and put resources into working on our communications efforts. That means that every year we should state what are the most important issues to communicate together in our different roles, but at least we should avoid the blame game.

I do not know how much can be done about the tabloid media. I do not know if it is ever possible to get them to stop making up such fantastic stories that one can only laugh at them. We try, through information and especially through our representation offices in every member state, to engage much more today with local and regional radio and all other media. We meet members of the media to provide them with the information that they need and to have a good exchange of views with them.

The national parliament's role is crucial. We have started to prepare for a new treaty that would formally give the national parliaments a different and much stronger role in checking subsidiarity and proportionality issues and making sure that things are anchored well in the national parliaments. This is crucial for us to succeed. In the future we need to anchor what we are doing in the national political parties in terms of the ongoing debate that takes place in every member state. We have done well so far but with a new treaty there would be clear rules for how this should be done. It would give an orange and a yellow card to the national parliaments, which would be a way to strengthen democratic functioning of the EU.

Fear works better and it is true that in the case of the referendum here the emotional approach worked much better. I understand from the opinion polls that even the "Yes" side admitted the "No" side was more effective because of its more emotional arguments. People want to be touched or like to have somebody express their fears. However, they also have a right to receive correct information. That is basic to all of this. In addition, they should not be misled. That is important and it is important also that we have a lively, perhaps even controversial, debate about the EU before the European Parliament elections. That will help and we should not fear it but should encourage a good, lively debate with different options being presented to the voters.

Senator Rónán Mullen

I welcome the delegation and apologise to the Commissioner that I was not able to be present for the start of her contribution. I have some questions for Ms Wallström and perhaps she will respond to each in turn. Does the Commissioner believe in the existence of a phenomenon known as competence creep?

Ms Margot Wallström

I do not believe the term exists in any official language. It is a concept used by those who feel this is something that is happening in the EU but I doubt if I have ever seen it referenced in any official documents.

Senator Rónán Mullen

Whatever about official documents, does the Commissioner believe it exists in reality or just in the minds of Euro-sceptics?

Ms Margot Wallström

There is always the risk that the EU takes over. I have actually written about this in a book about the EU that will be published next week.

Deputy Timmy Dooley

There is suspense already.

Ms Margot Wallström

Now it is getting difficult. When we build a structure and a decision-making apparatus like the one we have at European level, there is perhaps always a temptation and a risk that, in the end, the EU will take on more power than it should. This relates to subsidiarity and proportionality controls, for example, and it is good that we are constantly reminded of this point. It is the reason it was good to give a proper role to the national parliaments because they will put their fingers up and say they do not think the EU should do this or that. They will say it must stick to the list of competences and sharing of responsibilities as set out.

There is always a risk of this happening although at times it can be subtle. We cannot take on a new political domain and say we will start to take decisions in that regard.

Senator Rónán Mullen

I shall take that answer as closer to a "No than a "Yes". I have a related question. Does the Commissioner know of any instance where the Commission or the European Court of Justice have ventured into an area that was not thought to be one in which the EU institutions were understood to enjoy competence?

Ms Margot Wallström

I would need to be a lawyer to know if there have been cases in the European Court of Justice that have touched upon this. I imagine such a case would go against the principle of subsidiarity. I do not have the answer off the cuff.

Senator Rónán Mullen

I might draw the Commissioner's attention to a case. In doing so, I do not comment on the merits of the issue at heart but Ms Wallström may be familiar with the Maruko ruling which relates to the directive on equal treatment in employment. Recital 22 of that directive states that it is without prejudice to national laws on marital status and the benefits dependent thereon. Nonetheless, the European Court of Justice ruled that a surviving gay partner must receive the same benefit as a married widow would have received. The relevant German law which prevented that had to be struck down.

The comments of the European Court of Justice included the statement that:

Civil status and the benefits flowing therefrom are matters which fall within the competence of member states. However, it must be recalled that in the exercise of that competence, the member states must comply with European Community law and, in particular, with the provisions relating to the principle of non-discrimination.

Chairman

The Senator has four minutes.

Senator Rónán Mullen

Ireland is currently considering civil partnership legislation. Does the Commissioner agree, that in the light of that decision, some Irish people might feel that although family law is not strictly an area of EU competence, our ability to legislate precisely in that area might nonetheless be interfered with because of the extension of non-discrimination principles under the Treaty of Amsterdam? Does Ms Wallström agree that in the light of that decision, some Irish people may be of the view that, notwithstanding that family law is not strictly an area of EU competence, our ability to legislate precisely in that area might be interfered with because of the extension of non-discrimination principles under the Amsterdam treaty?

Ms Margot Wallström

I thank the honourable committee member for his question. We should be grateful that we have the European Court of Justice which can keep control of the competences the institutions have. We have looked at the cases mentioned in the Irish debate and in this case, the Commission's position is very clear. It is my experience that the directive is without prejudice to national laws on marital status and the benefits which derive therefrom. That is the main line and we must show respect to the specifics of Irish legislation. I do not know if the honourable member can give examples of where legislation has had to be changed.

Senator Rónán Mullen

The Maruko decision held that, notwithstanding the principle enunciated by Ms Wallström, the principle could be overridden by reference to other provisions of European law. Ms Wallström said we should be grateful we have the European Court of Justice which distinguishes between areas of competence and non-competence. In the light of that comment, what is her opinion of Mr. Roman Herzog's recent criticism of the European Court of Justice?

Ms Margot Wallström

I do not know of Mr. Roman Herzog's criticisms.

Senator Rónán Mullen

Mr. Roman Herzog, a former President of the Federal Republic of Germany and chairman of the federal constitutional court of Germany, has been very critical of the tendency of the European Court of Justice to expand its remit beyond strict areas of competence and be quite adventurous in its interpretations in a way that might be described as competence creep.

Ms Margot Wallström

In a European Union of 27 member states, given the number of political parties and very lively debates we have, there will always be such people. I thank democracy in that we will always have people who will criticise or have different views. This means we will be able to keep the matter under control and an eye on it. We will be able to allow all points of views to be heard and registered. It is more about what has been the experience of this country since 1973. Since it became a member of the European Union, has it had to change legislation, the national identity or very specific laws?

We take very seriously what we must respect in a union of 27 member states. We are very diverse and must respect the very different cultural starting points, positions and even legislation. This is made explicit in the Lisbon treaty which states we must respect national particularities. That is very important; otherwise how can we live together in such a diverse European Union? It will help us to regulate the issue and indicate clearly the different competences, while respecting national positions on matters such as this. I know the issue is sensitive.

Senator Rónán Mullen

With all due respect, does the Commissioner accept that since 1973 the corpus of EU legislation and treaty content have tended to centre on economic matters? It is only recently that EU competences have tended towards areas that might conflict, for example, with the predominant social and ethical issues as enunciated in the Constitution and legal tradition. In the light of this, does she accept that perhaps we are at the beginning of a process where we might gradually unpack the more recent EU treaty content and that we must speculate on that content in the light of the Commission's exercise of its powers and possible judgments of the European Court of Justice?

Ms Margot Wallström

I must disagree with the Senator, as that is not the case. What will steer Ireland is the fact that it has also signed the European Convention on Human Rights which will do more to guide the actions of Ireland and all other member states which have signed it. We have very little legislation in these areas and we cannot suddenly take on a whole new policy area and start to make decisions on it. The new treaty will clarify exactly the basic values that guide us, and we can decide the competence at national level and EU level. This is reasonable. I disagree with the general understanding but we must always keep an eye on it. It may have more to do with the role of the Court of Justice, which also can be criticised. In the new treaty there is the possibility for hearings regarding those who are to be appointed as judges. This is an important provision not many people are aware of.

Deputy Billy Timmins

I thank the Commissioner for coming to the committee today. Senator Mullen speaks very eloquently and in fairness to him he is one of the more logical representatives of those who voted "No". We can get a flavour of the difficulties "Yes" campaigners had from our interaction with Senator Mullen.

Ms Margot Wallström

I respect him.

Senator Rónán Mullen

I am sure there is a creeping compliment there — a "Yes" campaigner inside a "No" voter's body.

Deputy Billy Timmins

Earlier this morning we heard the claim that no one ever talks about Eurosceptics in Ireland. It was suggested that there are people who say they are "pro-Europe but", and they hide behind that banner. Does the Commissioner believe there are Eurosceptics in Ireland?

Commissioner Wallström mentioned the emotive argument. Anyone who knows anything about psychology knows that it is very difficult when dealing with an emotive issue to tackle it with logic. If there was to be a re-run of the referendum, does the Commissioner believe the “Yes” campaign should concentrate on emotive issues rather than try to deal with the argument in a logical fashion?

Would the Commission consider the concept of creating a simple, one page narrative of the Lisbon treaty, if this has not already been done, a narrative which would explain to people how the Lisbon treaty would ultimately benefit them? Should every member state have a Commissioner? The Commissioner mentioned in her document that it can be done and that disappointment could or may turn to frustration if a solution is not found. How might that frustration be manifested?

When driving here this morning I heard the comment that politicians would do a great job in running the media, and the media would do a great job running political life here. We both know what the other side should do. A report on the radio discussed the Commissioner's itinerary. It was stated that the Commissioner was to meet the Minister for Foreign Affairs and the Minister of State with responsibility for European affairs and perhaps she met them at lunchtime. She was to participate in a webcast tonight and will attend a fashion show tomorrow. However, it did not mention that the Commissioner would come to this committee meeting this afternoon. I am not necessarily pointing the finger at the Commissioner. This is the way it was reported. The fact that she would come before the sub-committee today did not register.

This leads me to the kernel of the Commissioner's remit and the point she raised about the concept of communicating the issue. The broadcast media are probably the best means to communicate the European ideal, the Lisbon treaty or whatever. Notwithstanding that, if I were selling advertising I would prefer to be selling it for "Coronation Street" or the "X Factor" programmes than for proceedings in Brussels. I feel I know what is right for the country and I have a fair idea of the solution. The dilemma for us is to bridge the communications gap. People will claim that politicians fail to engage with the public on the issue. It is not for want of trying. I attended a public meeting on Lisbon about which 1,269 letters were sent out to members of an organisation and 19 of them turned up. That is the bridge we have to cross. How do we make this relevant? The information is available — there is less knowledge than information — but the level of interest is low. In this we are no different from any other country in the EU.

Ms Margot Wallström

I hope I did not give the impression that I did not like or respect your questions. It is very important to discuss these matters. I think that "competence creep" is an issue that is widely debated. Many questions would force me into a minefield if I tried to comment on the Irish and what they face. I will be diplomatic while at the same time trying to answer the questions. I am asked if there are eurosceptics in Ireland. There is a sound scepticism. That is what many of my compatriots represent. They have a very sceptical approach to anything which has to do with power and moving things too far away. There is a need for democratic accountability. You are the people to tell me if there are eurosceptics here. What does it mean today? There is a whole range of eurosceptics who can be totally aggressive and mad. They visit my blog site sometimes and they are people with whom one cannot discuss. Then there are people who have real concerns and questions and feel very sceptical about this whole project. They want somebody to explain in plain language why this European Union is still worth investing in. Probably the whole range of such people exists in Ireland as well, but you are better placed to say that.

As to whether we should be more emotional, I think we should be more honest. We as representatives of the institutions have to admit we are not perfect, we make mistakes and sometimes compromises that are not at all perfect. At the same time it makes us very humble that we are able to bring together 27 European member states to sit around the same table to discuss problems we have in common and cross-border challenges, to which we try to find cross-border solutions. Every week this makes me feel very humble. That is why I believe in this project. There is no other way we can deal with everything from crime to climate change and environmental issues and the financial crisis. This is how we show that co-operation is helpful and profitable.

I fought, with the support of the Irish, to have a consolidated text as soon as possible. We should probably have had a citizens' summary as well. We have to be legally correct and we followed the procedures which have always applied when it comes to treaties. Whatever you do, not every Irish man or woman will read the full text. They will listen to their representatives and the leaders of civil society, people they trust, and take some of their arguments. You need that kind of honest description and appreciation of your view that this treaty would be helpful.

I tried last time I was here, perhaps without much success, to say it is like a cooking recipe. One needs all the right ingredients but the proof of the pudding is in the eating and one has to make sure one can use it to achieve the results one wants. One needs to tackle all these big political problems and challenges, but one is not so interested in the recipe in itself. There will be many narratives but hopefully we are all able to formulate a short story as to why the treaty is necessary. To me, participatory democracy is very important. The democratic strengthening is an important argument. My personal view, which I have expressed throughout the process, is that every member state needs a Commissioner. My argument is that what one might lose in efficiency one wins in legitimacy. This is needed more than ever. This was not the majority position of the Commission or in the work of the convention. The idea was that it would be more effective to have a smaller Commission. I had to accept that, but there were a few in the previous Commission who fought for having one Commissioner per member state. Let us see how this can be solved in the future. That is my personal view. I tell you honestly how the situation is.

I was asked how frustration in other member states might manifest itself. One has to give them answers as to how it should be dealt with. They are impatient, of course, because they have had their own processes. There have been difficult discussions and debates in some member states, and they have taken it to ratification. If one member state votes "No" and all the others vote "Yes", the pressure will be on you, but with full respect for your situation. They will want you to say how you can solve it, if there are specifics that can be dealt with and how it can be done. I hope they will not try to bully or threaten you. I do not think that will work and I think you should resist it. They are eager and feel a certain urgency because the European Parliament elections are coming up.

Deputy Joe Costello

The Commissioner is very welcome and I thank her for the presentation. My first question is about her role and the role of the Commission. Deputy Timmins asked if there are eurosceptics in Ireland. Quite clearly there are a few, but there are eurosceptics everywhere. We had one here the other day, the President of the Czech Republic. His type of euroscepticism is based on the belief that what is being created is a supranational entity, that we have moved away from the intergovernmental concept, that this is a limitation on democracy and that what exists in Europe is largely bureaucrats and elites. No doubt he would have cast the Commissioner as one of the elite.

On the other hand, we have equal criticism from the left wing, the trade union movement, who have been telling us that the Commission is a neo-liberal body, that at least 20 of the members come from centre right wing governments and that this is reflected in the Commission. They believe that directives are issuing which are causing problems for workers and workers' rights. They are sceptical, from a left-wing perspective, of the manner in which the European Union is conducting its business. That is the perception. Some 40% of Irish people who voted "No" did so because they were sceptical of the European Union's role in relation to workers' rights in this country. That was a major consideration. The Commissioner says the changes in the EU institutions will make it more effective. There is an equal perception abroad that the changes in the institutions will not just make it more efficient and effective, but will make it more centralised, in terms of the permanent president of the European Council, the clear division of roles in foreign policy as she outlined with the High Representative, and more majority voting which means less veto voting. There is a different interpretation from the benign one presented by the Commissioner and I would like to her to respond to that.

National parliaments would have a new enhanced role relating to subsidiarity, which is welcome, but that is limited because it does not include proportionality and it only relates to competences. Parliaments are not allowed to have a direct say on the draft programme related to matters other than subsidiarity. Why should the role not be extended to the entire programme? Why should parliaments not be invited to have an input at the earliest stage into the programme before it is drafted? Everyone lobbies and the other institutions are involved but national Parliaments are left out in the cold in that respect. It is difficult then for elected representatives such as us to say we are holding EU institutions to account if we do not have a role in doing so.

Ms Wallström stated, "The treaty also leaves open the possibility that the European Union will choose to retain a Commissioner from every member state, an option not possible under today's rules". Is that the thinking in the corridors of power at the Commission? Is it the view that if there was a rerun of the Lisbon treaty referendum, the other 26 member states would be willing to divert from the Nice dispensation so that every member state would be entitled to a Commissioner?

We are labouring in this bunker for a long time and we will continue to do so until the end of the month to ascertain how we move forward. Ireland had to do that when the people voted "No" in the first Nice treaty referendum. Denmark had to do the same but when France and the Netherlands voted "No", Europe bailed them out and they did not have to make sacrifices. A European conclusion was arrived at. What is Europe doing to assist us rather than wait for the Taoiseach to outline a road map in the middle of December? Is a road map forthcoming from Europe or will it remain passive? By the way, I voted "Yes".

Deputy Timmy Dooley

Now the Commissioner can see the trouble we had with the "No" voters.

Ms Margot Wallström

The idea of the Union as a superstate is dead for the foreseeable future. The whole process through the convention and what has happened shows this is not an idea member states or citizens will accept. I have not heard anyone argue for a super state. Everybody understands we will have to continue with this unique construction that is the Union. This combination works, even though it is sometimes difficult, tedious and creates strange compromises, and it respects all the member states and their particulars. The idea of a super state was never there in the first place. Nobody wants a super state. Instead, we must muddle through to find a solution that can build on the sound elements and architecture and develop them and make it more effective and democratic in decision making. This also gives rise to the question of where is the formal power and the informal power today. To equip Europe better from a democratic point of view, the lines in place must be empowered. Decisions have been taken at European level and now we have to make sure the connections and the people's right to control what goes on are empowered because the power has only been moved a layer.

Do we think a small member state can deal with the issues on the agenda every week for EU Ministers when they meet? Do we think there is a way back or do we not have to find the best ways to tackle these challenges together? That is what gives us the strength. When one travels the world, this is what comes back. People have such high expectations of Europe and think the EU has played a constructive role by not using military force and using other solutions and hopes. That is why this is the right way to continue, but we have to keep it under control. We have to make sure we specify the competences and we make it more democratic in order that we can listen better.

The Deputy correctly described what is in the new treaty. Today we are opening up much more. We send all the formal proposals to parliaments directly. They are allowed to comment on the contents and not only subsidiarity controls. We have opened up much more a role for parliamentarians but we do not have a formal obligation. There are no established rules but this is a political commitment. The Commission has said we will continue with that commitment. We will not change our commitment to listening to national parliaments. We also have to find ways where parliaments can regularly organise debates on the work programme and the political priorities we present. I hope that co-operation will be deepened and will develop in the future. In any other case, the treaty would have to be amended again and a specific role would have to be given to national parliaments if they are to be direct interlocutors for us, for example. A treaty change would be needed and that is out of the question.

Deputy Joe Costello

Could we not have an input into the work programme without a treaty change?

Ms Margot Wallström

Yes, parliaments do. We have had hundreds of meetings where we go to the national parliaments, present our work programme and listen to their views and this is important for us.

Deputy Joe Costello

I refer to a step earlier than that where parliamentarians could introduce issues that could be considered for inclusion in the work programme.

Ms Margot Wallström

In the consultation, the national parliament——

Deputy Joe Costello

The European Parliament has a consultative role in the Commission producing its work programme and lobby groups in Brussels are also involved at the beginning but there is no mechanism for parliaments to be directly involved from the outset.

Ms Margot Wallström

It is a good question. All the time we are trying to develop the influence and our interaction with national parliaments. It is a matter of timing. Where do parliaments come in? At the same time, there will be sensitivities in the European Parliament if national parliaments try to overtake its role or even compete with it. That must be crafted carefully.

Deputy Joe Costello

We are all partners in this business.

Ms Margot Wallström

That is how I prefer to see it as well. That is why we are always looking at ways to increase input.

It is even more important that the political parties understand what goes on. It is important for municipalities and regions in every member state to understand why there is a connection between them and what happens at European level. They must understand how directives have an influence and must be able to explain them and feel they have a say. This must seep through from national level to the whole system. This is how to anchor the system so that people know what is expected. That idea is interesting and goes well with our thinking.

Chairman

Before moving on to Deputies Byrne, McGrath and Treacy, who will have six minutes each, I have some questions to put to Ms Wallström. One of the main roles of our sub-committee is to consider the implications in our national interest given the Lisbon referendum result. Ms Wallström's written presentation contains a sentence I think was missing from her verbal presentation. That sentence states: "The disappointment across the Union could, of course, turn to frustration if a solution is not found within a reasonable timeframe." Will Ms Wallström outline for us the actions other member states could take as a result of this frustration and what does she believe is a reasonable timeframe within which a solution needs to be found?

Ms Margot Wallström

I do not know what the other member states would be willing to do. I think the right approach is the one being taken by the Irish Government right now, namely, to meet with almost every member state to try to explain what has happened here, the Government's thinking and how it is being dealt with at national level and to try to understand the reactions and how it is being perceived in the other member states. This is not the time for saying that if Ireland does not ratify by such a time, we will do something. Threats will not affect the Irish situation. Ireland must deal with the situation as it is.

The sense of urgency comes from the fact that we will have European elections next June, followed by the appointment of a new Commission in the autumn. If the wish is to change that, we have a certain timetable and must count back from that. This is where the frustration might lie, in that the other member states do not know what is to happen. Ireland holds the key to the whole debate.

Chairman

Later in her presentation, Ms Wallström made the point that in the absence of clear communication and information, such fears and concerns about the European Union can only grow. A recurring theme in some presentations has been the suggestion that the difficulties we have relate only to communication and that if we explained things better, everything would be fine. One of the jobs of the sub-committee is to try to establish what actions our national Parliament can take to improve our effectiveness to deliver better engagement with Europe. From the point of view of the Commission, what actions does Ms Wallström believe the Commission and the Union need to take to reconnect with the Union's citizens, apart from improving how we communicate with them?

Ms Margot Wallström

That is my favourite question, because that is what I work on every day. It is crucial to ensure we move on several parallel paths. We must start with civic education, with the citizen's right to know as the starting point. If students do not even hear about what the European Union is and does, how can they ever have an interest in it? They have a right to know from their curricula what the EU is and the role it has in deciding matters related to their everyday lives. We must also work to have more of a European political culture. That means we need European political leadership. At all levels, political leaders must be able to explain the links between them and what happens at EU level.

We also need the media to report on European affairs. Ireland is a good example of where the media does that. I have not come to complain about the media, but their role is extremely important. The use of the new media for political debate, for example the Internet, is important. We also need to work with civil society. This is the only way forward.

It is not true to say the referendum failed only because of lack of information. It was for various reasons, as we know from the opinion polls. There were issues of real substance of concern to Irish people, but also, in many cases people said they did not get it all, or did not read the full text or were not that interested in it. Many people felt they had not got enough information to understand what was at stake.

Chairman

All of my colleagues and I have spent a great deal of time trying to identify ways to move forward. I was struck by a comment Ms Wallström made to a Deputy when she said, we should not let Ireland be bullied or intimidated by any other country. Regardless of what happens — I hope we have a positive and constructive outcome — it is not just a matter of us not allowing ourselves to be bullied by anybody else. We have a Community law system that is based on unanimity and a strong Commission, represented by Ms Wallström. Does she agree that she, the Commission and a law based on unanimity will ensure we are recognised and our wishes will be protected in what we end up doing and that it will not be a case of us having to fend off any bullying attempts by anybody else?

Ms Margot Wallström

That is why I have responded as I have. It is very important to show respect for Ireland's follow-up debate on the result and for the work of this committee and for the effort to find a way out of this situation. What the committee will hear and what Commission Members hear when they travel in the other member states is that these states have been through a long and heavy procedure, have come to a decision and want to know how we will get closure on this debate, because ratification will help Europe. My impression is that they do not want to reopen this. From discussions with the other member states, the impression is that Ireland's understanding is that we can come back and negotiate a better deal. It is good that Ireland discusses the issues with member states and that Ministers travel to meet the other member states to explain their process and to listen to their arguments. It is my impression that the other member states do not wish to reopen the debate and are not willing to do that, but they respect the fact that Ireland should set out its roadmap and timetable to deal with the result because it affects the rest of Europe. The outcome affects the rest of Europe and it is only they who can show their reaction, but without intimidation.

Deputy Thomas Byrne

Ba mhaith liom fáilte a chur roimh an Coimisinéir agus a foireann. I am sure the Commissioner's presence here will lead to a vast increase in the hits on our website, which attracted some negative comment in the media today. The committee has done much work and, I hope our report will improve the debate and show the reasons for what has happened.

I liked Ms Wallström's statement that the idea of the super state is dead. People appreciate that. In the anti-Lisbon press recently, the recent euro 15 plus Britain meeting in Paris to deal with the banking crisis was presented as the rise of the nation state, intergovernmentalism, of countries operating by themselves and the weakening of the Commission, whereas I would have seen it as a really good example of Europe working together. Has Ms Wallström some comment to make on how that meeting was portrayed in Europe? What was the reaction to it there?

These people would say our national identity has been strengthened by that. I feel our national identity has been strengthened by our membership of the European Union. The only real shock to hit us over the past 30 something years has been equal pay for men and women. While it was the greatest shock for the country, it was both wonderful and tremendously positive. All the bad things about which people talk simply have not happened. They might but probably will not because they have not happened in our experience of membership.

Senator Mullen brought up the Maruko case a number of times. He implies civil partnership is a sensitive national issue. As the Government is introducing civil partnership legislation, it cannot be described as a sensitive national issue. In Germany, to which the Maruko case relates, the government introduced life partnership legislation. Would the Commissioner agree with me that the upshot of that case is that in Germany under public social security and national welfare policy, life partners can now receive a widow's or widower's pension? As this was not available as part of a private pension scheme, the European Court of Justice ruled that such discrimination was not allowed, but that ultimately it was for the national court to decide. The point is that the case arose because German national law favoured one set of pensioners over another. It has nothing to do with forcing homosexuality on us, which is all we sometimes hear from the "No" side. It is terrible. It is purely a matter of how national law correlates with European law. This was a directive to German law which has no application here, but might have if we were to decide to introduce civil partnership legislation. The Commissioner may have comments to make on that matter.

The Commissioner does a great job. I am glad she mentioned local radio and media, on which the Commission needs to do more. I would love to hear the Commissioner appear on my local radio station.

Deputy Timmy Dooley

Thomas Byrne FM.

Deputy Thomas Byrne

It is not; far from it. I appeared on national radio and in the national media several times during the referendum. I believe the only contribution I made on local radio was to rebut the allegation that the Lisbon treaty would result in the construction of more nuclear power plants. That was the sum total of my contribution. That may be because the Commission needs to do more to promote the work it is doing outside the debate on the Lisbon treaty. We have heard some very interesting statistics about the Common Foreign and Security Policy, which everyone associates with the military. We were informed the other day that most operations were civil operations involving police officers or judges. That information is certainly not imparted to the public. The Commission needs to do more work on its public relations on what the European Union is about.

I thank the Commissioner for coming and look forward to hearing her observations.

Ms Margot Wallström

I thank Deputy Byrne for his questions. I will write in my blog about my visit here. I was surprised to hear that it was not included in my programme. In that case the visit to the university and the meeting with the women's lobby are not mentioned either. That may make it even less interesting for some to report on it.

I try not to divide the Irish people into "Yes" and "No" camps. I am more interested in discussing the political issues with which we are dealing. We are interested in having a good result. I have always thought that the Irish people were against discrimination and for human rights in general. I would like to see equal pay, not only here but also in my home country and across Europe. The differences in pay for equal work between men and women are still between 15% and 23% or 24%. Considerable work remains to be done in that regard.

On the financial crisis, it all started, as the Deputy will remember, with individual member states trying to react. There were reactions from other member states and it escalated with the result that in the end we had a co-ordinated response, which was also an exercise in political communication. When the European Union was seen as co-ordinated and united in finding the solution, it was a very important signal to the rest of the world. We had very concrete proposals that were echoed in the United States. That is how to deal with a crisis.

Now even in Sweden there is discussion about the euro and it is feeling some of the consequences. This illustrates also an enormous change in a small number of years. Almost at the same time as Ireland had a crisis because it had run on its currency in 1993, we had in 1991 and 1992 an enormous crisis in Sweden with interest rates of 500% and the Government had to step in and save the banks. They were all national. In those days they had very few cross-border transactions. Today, of course, the biggest banks have cross-border activities. This is where we must also adapt the financial control system including the supervision of banks and financial activities accordingly. At the same time as long as we have a divide between those in the euro area, I guess they will also need to take their responsibility and at the same time try to do as much as possible in a co-ordinated manner with those outside the euro area. It is good that we have the financial and stability pact on which to build.

We have the story of the misrepresentation of decisions also. We had a story at home stating that the EU had banned the baking of sugar buns sold at church fairs and so on. I was furious when this was reported on television. I phoned and said we had to be able to answer to this and state it was not correct. This was legislation the national authorities had introduced. Of course it was comfortable to blame it on somebody else. We just need to make sure we better——

Deputy Billy Timmins

That is a trick the Government side pulls here.

Deputy Thomas Byrne

We get blamed for everything.

Ms Margot Wallström

I will be on radio tomorrow morning and we need to engage with the local media. This is the face of our participation.

Deputy Michael McGrath

I welcome Commissioner Wallström and thank her for appearing before us today. I fully understand her reluctance to discuss the possible ways forward out of the current impasse. However, it is an important consideration for the Government and for the Irish people. If we were to put the Lisbon treaty to the people again we would need to outline the options to them. One of the arguments on the "No" side during the recent campaign was that we could go back and renegotiate a better deal. The position would need to be made perfectly clear. Is Europe determined to proceed with the reforms with or without Ireland? In her presentation Commissioner Wallström said nobody wanted to see Ireland left out in the cold, with which I agree completely. However, there is an implication that it is a possibility. While I do not expect her to answer it today, over time we need clarity on the possibilities and options. It would be an important consideration.

As the Commissioner will know, considerable research has been carried out into why people voted "No". A number of common themes have emerged and it is important those issues are addressed in so far as possible. The first one was articulated very well by Senator Mullen regarding social and ethical issues and whether the European Court of Justice in particular by virtue of its decisions could impose positions on Ireland which we would not otherwise wish to take. Recently the head of the Catholic church in Ireland, Cardinal Seán Brady, appeared before the committee to outline his views. While the church generally would be positively disposed towards Europe there is a lingering doubt and suspicion about Europe's intentions and the possibility of the court imposing policy decisions on us. It is an issue that will need to be addressed because it was a concern and led many people who would inherently be pro-Europe to vote against the Lisbon treaty. That issue should be teased out further in the next few weeks and months.

I would be interested to hear Ms Wallström's views on the proposal to provide that every member state will not have a Commissioner at all times. If Ireland decides that the retention of a full-time Commissioner is an important issue, does she believe it would be pushing an open door at Commission level? She has mentioned that the Lisbon treaty provides for the potential retention of a full Commission portfolio by each member state, subject to unanimity.

The issue of taxation has been dealt with comprehensively. However, people were deliberately misled on the issue. The sub-committee has received clarification from the Irish Taxation Institute and other bodies. We have been assured that the setting of corporation tax rates in Ireland is entirely a matter for the Government — that will not change.

Many of the concerns expressed about the EU Common Foreign and Security Policy were propagated on the basis of falsehoods. It was suggested conscription to a European army would be introduced. We can allay such concerns. Can the European Union do anything more to help to persuade the Irish people that there is no question of this country being compelled to participate in military missions with which it does not want to be involved? Can it issue a further declaration, for example? Ms Wallström spoke about the triple lock mechanism.

I thank Ms Wallström for attending. I have highlighted some of the issues that will need to be addressed when representatives of the Government outline this country's position at next month's EU summit. The issues in question will continue to be a factor. If we are to break the impasse, the European Union will have to play a part in helping us to resolve them.

Ms Margot Wallström

I thank Deputy McGrath for his questions. I will give my honest impression of the situation.

Many member states were surprised and worried when Ireland voted "No". They accepted that the Irish Government needed more time to reflect on the reasons for the "No" vote, which has affected all other member states. Member states are satisfied that in December Ireland will set out a timetable for solving this problem. My personal impression is that it is unrealistic to believe member states want to engage in renegotiation. They do not want to reopen the negotiations. My personal impression is that they believe they have already spent too much time dealing with institutional issues. That is probably what Irish Ministers are hearing during their welcome contacts with representatives of other member states. Members of the sub-committee may think it is possible to restart and reopen negotiations, but my impression is that the door is closed. I remind them that 24 member states have completed the full ratification process, involving public debates and parliamentary procedures. That figure will increase to 25 when another member state ratifies the treaty on 20 November. I do not think that is realistic.

I do not think member states want to bully Ireland. I think they hope Ireland will stay within the European Union. Ireland's membership of the Union was not questioned by the outcome of the referendum. Some were upset by the "No" vote. They believe Ireland's reaction means it should stay outside. The people in question are at the extremes and do not represent the general mood in Europe. We are willing to listen to Ireland's proposals to find a way forward. I am sure they will be constructive. If other member states can be helpful in any way, I am sure they will be, but they do not want to spend more time renegotiating the treaty. Its ratification is an urgent matter because there is a pressing need.

The church and state should be separate. The European Union is a secular organisation. As a political body, it must be secular. There is a recognition of the role of different religions and confessions in Europe. Believe it or not, I used to be my country's Minister with responsibility for church affairs. Until recently, we had a state church in Sweden. I have dealt with these matters from the inside. In recent times we have had more regular meetings than ever before with various religious leaders. We are open to such discussions. We have to ensure the new treaty does not open up any new competencies in this area. In many cases, it is a matter for national legislation and respect for the European Convention on Human Rights, rather than EU legislation or competency creep at EU level. That is important.

I do not understand from where the issue of conscription has come. It upsets me. There are five neutral countries in the European Union, none of which would accept the introduction of conscription. It is not provided for in the treaty and should not be an issue here. That has to be clarified. The treaty is clear on the issue. We will not change the triple-lock system that applies to issues of this nature. We respect the Irish position.

Deputy Noel Treacy

I welcome Commissioner Wallström. It is good to have her back in Ireland. I thank her for the work she has done on behalf of the Commission. She interacts with all member states.

Ireland faces many challenges. One of its domestic challenges is to resolve the legal and constitutional problems it faces in respect of the Lisbon treaty. The European Union also faces legal and constitutional challenges, including at international level. I welcome the confirmations and affirmations Ms Wallström has given the sub-committee today. The referendum that was held in June was defeated as a result of myths and fear. One of the difficulties faced by elected politicians is that no matter what we say, those who have no mandate consistently seem to be able to get a greater opportunity to peddle their myths. I endorse what my colleagues have said about myths. I will not repeat their comments on issues like conscription that have no relevance to any EU treaty and have never been considered at EU level.

We are about to open a new chapter from a world order point of view. The EU has an opportunity to resolve the current global crises in parallel with the United States. Similarly, the Union faces the big challenge of working with Ireland to find a common formula to ensure that we validate our position as a full member of the EU for the last 35 years. Ireland needs to allow the EU to develop the legal competences which are needed to sustain the Union, its member states and its citizens. Such competences are critically important if the Union is to play a strong legal role in global affairs. That is the big challenge we face. The EU needs to be able to play its part in the world order. We need to ensure that Ireland is involved in that process.

Ireland's difficulty is that it has inherited the legacy of the rejection of the proposed EU constitution by the Dutch and French electorates. The results of the referendums in those countries sustained the "No" campaign in this country. The big myth was that the treaty could be renegotiated by our Government, our politicians, our MEPs, our Commissioner and our outstanding public and civil servants and ambassadors, who do an outstanding job for this country. We consistently argued that, contrary to what certain people were suggesting, it was not possible to develop a new treaty that would be much better for the EU. We pointed out that certain conclusions had been reached, by consensus, as part of the huge democratic convention that took place at EU level. We asked the people to legally validate what had been agreed.

The EU needs to find a formula that will allow it to assist Ireland. When we joined the European Community in the 1970s, we were in a serious financial situation. Interest rates were approximately 19.25% at the time. The Union was more than generous to us in those years. Ireland borrowed millions of pounds from the European Union at a fixed rate of 5%. I think we repaid 3.75% back on that. All of the money was repaid. This country's financial situation presents a great domestic challenge here, as it does in all other member states.

Ms Wallström spoke about sugar buns. We had a lot of sour cakes when the results of the referendum came through last June. It is important to get some sugar at this time. People have short memories. This county has come forward in leaps and bounds as a result of the generosity of the Union. The challenge for the Union is ensure that at this time of global crisis, when Ireland and the Union face legal difficulties, the European Investment Bank can provide the cash streams that are needed.

Chairman

There are three minutes left in which to conclude our discussion with the Commissioner.

Deputy Noel Treacy

As a mark of respect to the Chairman for giving me an opportunity to speak, I will not speak for three minutes.

The European Union faces a challenge to ensure it has a cash stream, particularly in the euro zone. Let us imagine that Ireland was not a member of the European Union or in the euro zone. How could we survive a global crisis with the Irish pound? We would be in a worse position than that in which Iceland finds itself. As proud Irish people and proud Europeans, we admit that is the case. The challenge for the European Union is to find a formula that will assist all member states to overcome the global financial crisis and recreate confidence among the people. I hope, with a new sugar bun, we will be able to revisit the great challenge for the Union and an even greater one for little Ireland.

Chairman

I thank the Deputy for his contribution. I ask the Commissioner to respond briefly, after which other members may contribute.

Ms Margot Wallström

I think it is more the staple diet of potatoes which makes both the Irish and Swedes strong nations and peoples.

In the area of energy policy, how will we get investment capital to invest in new and, I hope, sustainable energy systems if not by helping each other and using the European Investment Bank and other financial possibilities to support these necessary investments? We need to join hands and work together. I can only agree with most of what Deputy Treacy said. He is correct that we have many important political problems to solve. Citizens will say we keep talking about the treaty and institutional issues when we should get on with the job. There is a sense of urgency and pressure to have this issue sorted out. It is in this respect that we will feel other member states reacting with a view that we should get on with the job and that we should be able to take the necessary decisions in a democratic way. We have been working together on a number of important issues, not least of which are climate change and environmental issues. This is where so many of the difficult challenges lie.

Chairman

Each member may make a final point.

Deputy Billy Timmins

I note Ireland dampened somewhat President Sarkozy's great plans for the French Presidency. He was, however, able to absorb his energies in dealing with the crisis in Georgia and the financial crisis, which got Ireland off the hook.

Deputy Timmy Dooley

Our contacts in Russia helped.

Deputy Billy Timmins

What impact will the holder of the Presidency of the European Union have on the course of events? The Czech Republic will assume the Presidency in a couple of months and will be followed by the Commissioner's country of origin, Sweden. One would expect the Presidency to have a significant impact on how the European Union moves forward. What impact does the Presidency have?

Deputy Joe Costello

On the plan B scenario, it is unlikely that there will be substantial movement in finalising the way forward until the European Parliament elections take place. If they take place under the old Nice treaty dispensation, what will be the position on the 12 countries entitled to additional MEPs under the Lisbon treaty system if the number of Commissioners is reduced? Has the Commission discussed this issue in planning for the eventuality that a solution to the Irish question is not found until after the European elections in June? Is a satisfactory formula available for proceeding in such circumstances?

Deputy Timmy Dooley

On behalf of members, I thank the Commissioner and her officials, some of whom have been before the Joint Committee on European Affairs, for the work they have done to assist us. Have citizens and, to some extent, parliamentarians lost sight of the big picture as regards the role of the European Union? Have we started to concentrate on the minutiae of the legal text and what it may mean when tested in the European Court of Justice or elsewhere? Are we neglecting to identify the crises we must face, whether humanitarian issues or issues such as energy security and climate change to which the Commissioner referred, or other general issues which should be addressed collectively in the European Union? Parliamentarians and citizens should focus on developing coherent policies to address these issues and meet the needs of this and future generations.

Deputy Thomas Byrne

I thank the Commissioner and her officials for coming before the sub-committee. I will put a number of questions which have, I hope, simple yes or no answers. Does anyone want to renegotiate the Lisbon treaty? Is it possible to renegotiate it?

Deputy Noel Treacy

I sincerely thank the Commissioner for visiting us again with her excellent officials. As always, we are pleased to have her.

One of the great strengths of the European Union has been the solidarity shown among member states and citizens in facing up collectively to the great challenges before us. Never before has solidarity been more necessary in the European Union. In the crisis we face can we be assured that Ireland will be shown enhanced solidarity in the European Union until we get through the tunnel and, I hope, find a solution which will allow the Union to provide, to its full capacity, a service for all its citizens.

Chairman

This morning the sub-committee examined options for moving forward. Among the many issues we considered were protocols and decisions based on the Danish model. While the Commissioner may confirm that there is not an appetite for substantial renegotiation of the treaty, is there an appetite for providing protocols or making decisions which would specifically affect Irish interests? How would such a request be viewed by the European Commission and Council?

Ms Margot Wallström

On some of the points members have put so beautifully I can only agree. I could not have expressed better the view that we may sometimes lose sight of what we are here to do and that perhaps we are not always capable of explaining our dreams and visions for the European Union. If peace was the start of this whole beautiful project, what does the European Union mean for young people today who must feel motivated by co-operation or wanting to invest in working for the European Union? We can become the showcase for sustainable development and work more on democracy and integration. These are the three most important issues.

The Commission, with all its efficient officials and legal service, is looking at all options. However, we can only speculate because we are all waiting for the road map and the Irish response. We have allowed Ireland a period of reflection in which to follow up and prepare. In December everybody will want to know what exactly Ireland proposes should be done. All member states will want to show solidarity and be constructive. However, there is absolutely no willingness to reopen the negotiations, the decisions taken or ratifications undertaken. They would be willing to consider any other solution but should not be asked to reopen their procedures. There is absolutely no appetite for it. That is my personal view which I believe is shared by the Commission. The Commission will be willing to listen to other proposals to help, offer clarification and counter incorrect remarks, but I am not the one who can guess in this respect. It is very good that Ireland is having deliberations with member states to obtain a better understanding. That is my impression having heard how other member states react. They want to know what the position will be in December. They are absolutely willing to be constructive and show solidarity but also a little impatient.

Other member states are examining the consequences of our decision. It is clear that if Ireland does not ratify the Lisbon treaty, the Nice treaty will be applied. The Nice treaty refers to a figure of 736 MEPs. Member states will lose MEPs and it is clear that the number of Commissioners will be less than the number of member states. The exact procedure in this regard will be a matter for the Council; the Commission will not even have a formal role in putting a proposal on the table. We can only speculate but I believe most member states are planning on the basis that they will be working under the Nice treaty. They do not expect the issues will be solved before the European Parliament elections. They are waiting for the Irish response on whether these circumstances will have changed at the Council meeting in December.

Big member states have the resources to act more consistently and with more clout than smaller ones but a small member state can also be very efficient in finding compromises. The latter do not always insist on their own agenda, hidden or not, and work very well with the Commission. In difficult times, as in the transition period, a member state will have to trust the Commission very much and rely on its resources and staff to do a good job. In these circumstances, we should be very grateful that the economic crisis happened under the chairmanship of a big country. This has helped, as big countries carry extra weight. Under the Lisbon treaty, the idea was to speak with one voice with a clear division of labour and responsibilities at the top level, while including top figures who could engage in the negotiations.

Chairman

I thank Commissioner Ms Wallström. We have had many guests before the sub-committee and I thank all of them for their efforts and contributions. On behalf of members, I thank the Commissioner and her team for contributing and their work.

The sub-committee adjourned at 3.50 p.m. until 9.30 a.m. on Tuesday, 18 November 2008.