I thank the committee for its kind invitation to appear here today. I also thank anyone who was involved in any way with the creation of the Oireachtas Parliamentary Fellowship and its administration, particularly Ms Maria Fitzsimons of the Library and Research Service. It was a worthy idea, a good way of creating links between the Oireachtas and academia. I hope that it will be reactivated as soon as is feasible.
I also thank anyone who co-operated with interviews, and anything like that, with me, not excluding the Chairman, because that helped. My work in this area is continuing. I am involved in three separate projects in the area at present and I probably will be knocking on all or any of the members' doors in due course in that regard.
I have been asked to speak about the role of national parliaments in European affairs. What I was going to do was offer a few thoughts in that regard on the European aspect of matters generally and then focus on a few suggestions as to how we could augment the role of the Oireachtas in European affairs. I have been asked to keep it to approximately 15 minutes which I will do my best to do.
I suppose it is fair to say in the light of last week's events we live in exciting times for students of European integration, if I can describe them as that. With the fiscal treaty, in particular, and the six pack, the issue of democracy in the European Union is moving squarely to centre stage once more. The European Union is now getting quickly to be in a position where it will exercise such strong influence on national fiscal policies that such is likely only to be acceptable if the European citizenry finds the European polity itself to be adequately and democratically responsive, in other words, decisions on issues will have to be underpinned by a strong democratic legitimacy.
The challenge at European Union level is rendered all the more difficult because although it is a system that has a great deal of formal legitimacy to it, in other words, we have seen successive interventions with each treaty designed to increase the level of democratic legitimacy at European level, and the level of checks and balances have been increased as time went on, they seem to have enjoyed limited success in supplying adequate social legitimacy.
Of course, the attempt to provide the European Union with adequate democratic answerability is one that has been going on for several decades. The founding treaties have very little to say about it for a number of reasons. It was not a conspiracy against democracy in any way. It was simply that the original treaties had a fairly narrow economic focus. The role of national parliaments was seen as something of a national affair anyway. Also, it was originally felt that in developing democracy at European level, the institution one should look to, first and foremost, was the European Parliament. That was the original view. Over time, with every major treaty, the role of the European Parliament has been increased but it does not seem to have adequately slaked the thirst for European level democracy. We saw evidence of that in the fiscal treaty debate because even though much of what was contained in the treaty was already in the six pack, which the European Parliament had debated extensively, it did not appear to satisfy many people. To my surprise, a few days before the referendum I found myself debating with a certain MEP who did not consider the adoption of the six pack to be democratic even though he had personally participated in the debates on it. He held a legitimate point of view but it was interesting to come across it. In any case, the focus has shifted from the European Parliament to national parliaments, or at least additionally to national parliaments, which have gradually been given more mention in the treaties in Articles 10 and 12 and a bigger role since the coming into force of the two protocols on the national treaties. The first protocol provides for extensive information rights in regard to legislation. We are told that knowledge is power but a flood of information can be difficult to deal with. We have to ask ourselves whether the information that is sent to the Oireachtas is being filtered in the most appropriate way. That might be an issue to which I will return in due course.
The second protocol is the subsidiarity protocol, with its provision for yellow cards and red cards. I will briefly outline how we have operated the subsidiarity protocol in Ireland. The protocol provides a means for national parliaments to intervene directly at European level to check for compliance with the principle of subsidiarity. It is a more radical departure than the first protocol but it remains to be seen whether it will have a greater impact. I happened to be carrying out my study when the protocol was first deployed in Ireland in a reasoned opinion on the common consolidated corporate tax base, CCCTB. To my knowledge this was the only occasion on which Ireland has sent a reasoned opinion, which reflects the fact that the early warning system has generally been little used across Europe or, at least, it has generated very few reasoned opinions. A mere 30 reasoned opinions were produced in 2010. The subsidiarity protocol depends for effectiveness on the internal systems of each state. In Ireland we are opting for a decentralised sectoral approach but given that it has not yet given rise to a reasoned opinion, we will have to reserve judgment on its prospects for success.
The CCCTB example produced a strikingly united approach within the committee established to deal with it. There was no left wing-right wing divide. That is interesting because it reveals that who the electorate voted for made no difference on the subsidiarity issue. If that is generally true, however, I think we have a problem because there would be no electoral incentive for parliamentarians to engage in this work. The committee's use of the protocol generated considerable interest, with full attendance at the relevant meetings. This reflects the fact that across Europe the process will be driven by committees. However, it remains to be seen whether it is viable to rely entirely on sectoral committees in this regard. On the negative side, the wrong sort of interest was shown in some respects. This was reflected in the question posed by one parliamentarian who suggested that the committee was the first line of defence on the CCCTB. In other words, the tool of subsidiarity objections was being used to cloak substantive objections to a measure. I suspect that will happen frequently across Europe. It may give rise to an increased salience for the early warning mechanism but perhaps at the cost of the integrity of the system. In other words, it will be used to take a second bite of the cherry by states which want to block measures from becoming law.
The committee report was ratified by a plenary session in the Dáil which I attended. I was interested to note the poor attendance on the part of the Opposition. Attendance by Government Members was initially high. They had clearly been instructed to turn up, which was good to see, but the Chamber rapidly emptied. That was a rather depressing sight because, despite the importance of corporate taxation to Ireland, the issue lacked the ability to keep parliamentarians in the Chamber. This indicates that the subject of subsidiarity review lacks sufficient electoral bite for parliamentarians to generate interest. Opposition parliamentarians will generally only stay in the Chamber if there is some hope of embarrassing the Government. That appears to be lacking in the subsidiarity review procedure, which creates the risk that it may descend to irrelevance within the Irish political system.
In 2010, which is the only year for which we have data on the subsidiarity protocol, no less than 82 draft legislative measures falling within the scope of the procedure were sent to national parliaments. While 211 opinions in some shape or form were received, only 34 constituted reasoned opinions, in other words, allegations that a proposal or some part of it breached subsidiarity. As four of these opinions were not valid because they arrived after the eight week deadline or were not validly adopted, only 30 reasoned opinions were sent on subsidiarity grounds in 2010. Of the 40 countries or chambers listed in the Commission's report for 2010, 23 did not produce an objection, whether valid or otherwise. We can see that it has not had a brilliant start.
I will broaden the discussion because it is necessary to contextualise the issues arising. No mention of the subsidiarity review provisions would be complete without taking note of process of the political dialogue established in 2006 through the so-called Barroso initiative, which is a privileged channel for communication between the Commission and national parliaments. The 2010 annual report indicated that 387 opinions were sent in this regard, which represents an upward trend. If one takes away the subsidiarity opinions there were 353 opinions, which is nonetheless a considerable number which dwarfs the number of reasoned opinions sent to the Commission. There is, therefore, some justification for arguing that political dialogue outranks the subsidiarity protocol in importance to member state parliaments.
The opinions submitted as part of the political dialogue are also submitted to the European Parliament, which takes them into account in suggesting amendments to draft proposals. One European Parliament official observed to me that a good result from the European Parliament's point of view would consist of opinions rather than reasoned opinions. However, there are limits, even here, to that relative success. In 2010, a mere eight parliamentary chambers across the European Union accounted for three quarters of the opinions sent under the Barroso process. Ten chambers, including France's Assemblée Nationale, did not send any opinion. A further five bestirred themselves to send in one opinion each. Overall, we can see a limited range of activity and patchy participation. In a quarter of parliamentary chambers, the seed of dialogue has not germinated and in more than one third the signs of life are tentative at best. These are relatively early days and I understand the 2011 figures will be better but nonetheless there are signs of problems. Furthermore, as the feedback from the Commission can be very slow and unsatisfactory, there is at times not much incentive for parliamentarians to engage actively in the process.
It is legitimate to ask why the subsidiarity control mechanisms were included in the first place. They were probably included in response to criticism about a lack of transparency and fears of European Union institutions increasing their power. However, if the Commission's proposals are analysed they do not seem to contain a great deal of reality. The mechanisms are designed to ensure the absence of a problem in an area in which there is not really a problem, other than one of political perception. Mr. Andrew Duff, MEP, who was involved in drafting the subsidiarity mechanism, has described it as being something which although a necessary addition to the system, was not really intended to be used and more of what one would call a dignified part of the European constitutional settlement than an efficient one.
That does not mean the mechanisms are of no value at all. They have, particularly in Ireland's case, motivated and stimulated parliaments into better equipping and resourcing national legislatures. They may constitute a transmission belt for dissatisfaction about particular proposals, such as the CCTV one. They may be useful in that regard. In reality it is very difficult to confine parliamentarians, as we have seen in practice, to the issue of subsidiarity and if it was intended to achieve that, I do not believe it will work.
There are many challenges and risks associated with the procedure. Getting national parliaments to organise themselves to cope with it is one. We will need to see how Ireland fairs in the coming year or two in that respect. Collectively it also presents challenges. The wheels have come off the process somewhat since COSAC dropped its role in picking particular proposals in order to, if one likes, stimulate debate on those. COSAC reactivating its role in that regard might be helpful.
The subsidiarity process needs to tread a happy medium between excessive interference with the legislative process on the one hand and indifference growing up in national parliaments to the whole subsidiarity process on the other. Of the two, the risk of disillusionment is the greater at the moment. I recently attended a conference which dealt with the subsidiarity process. The attendance at that conference involving national officials was half the attendance the previous year. Some disillusionment, for example from the United Kingdom Parliament, was expressed that no measure as of yet has ever been successfully challenged using the subsidiarity process. Returning to a point I made previously, it is not unduly pessimistic to say that in so far as the subsidiarity process works, it will have to work in the absence of a great deal of electoral interest on the part of the electorate generally. How well it can work in national parliaments from that point of view remains open to question.
I wish to discuss how we should augment the role of the Oireachtas in European affairs. In the research I have done, I have set out five, what I would call, "desiderata” for the Oireachtas in European affairs - five things the Oireachtas needs to do. First, the Oireachtas needs to deal with the pre-legislative phase at European Union level - in other words before legislation is formally drafted. Second, it needs to deal with the legislation once drafted. Third, it needs to oversee the adoption of measures in Ireland for implementing directives and regulations. Fourth, it needs a system to deal with a very considerable number of instances where European Union policy does not involve legislation at all. Fifth, as a result of the abolition of the National Forum on Europe, the Oireachtas needs to become an effective forum for the facilitation of a wider and deeper debate. It did that for the fiscal treaty. A sub-committee of this committee was the first forum in which that took place.
Most of those issues have been considered by the Oireachtas. In the previous Dáil we had the report by the sub-committee chaired by Deputy Donohoe, Ireland's Future in the European Union: Challenges, Issues and Options. We then had the report of the joint sub-committee on the review of the role of the Oireachtas in European affairs chaired by the Minister of State, Deputy Creighton. Chapter 4 of that committee's first report concerned the role of the Oireachtas. Its second report referred exclusively to the future role of the Oireachtas. I suppose what we can call the third occasion for the consideration of these issues has consisted of the programme for Government agreed in February 2011. The programme for Government is not the same kind of document as a parliamentary report - it is a plan of action rather than a discursive document. I suppose we can consider it the Executive answer to the agenda that was mapped out in the Donohoe and Creighton reports.
In some respects the proposals made in the programme fall short of the ambitious targets outlined in these reports. For instance, they contain no unambiguous commitment to the introduction of a scrutiny reserve, a system specifically recommended by both of those sub-committee reports. Nonetheless the implementation of the proposals in the programme for Government will represent a considerable empowerment of the Oireachtas in European affairs. Some idea of the overall ambition of the programme can be seen in its wording that "the Oireachtas must be given responsibility for full scrutiny of EU draft proposals, for proper transposition of EU legislation and for holding the Government accountable for the decisions it takes in Brussels." Whether the means provided match that ambition is another question, but there is no doubting the ambition in that regard.
I will now deal with the five desiderata. On influencing pre-legislation at European Union level, if the Oireachtas wants to exert influence regularly and systematically at European level it must set up a system whereby it intervenes in debates conducted prior to the drafting of legislation at European Union level. That is where the Barroso initiative comes in. I have already reviewed that. In terms of the Oireachtas’s contributions there, of the 387 reports it mentioned, only three, 0.76%, came from the Oireachtas, which puts the Oireachtas in joint 18th place out of 27 European Union member states. The programme for Government undertakes that “The Oireachtas will devote a full week each year to debating major EU issues of concern to Ireland such as the [European Commission’s] Draft Annual Work Programme.” I know we recently had Europe Day in the Oireachtas. Of course while a debate of that nature is useful, we probably need a more comprehensive and year-round strategy regarding Commission reports and other issues. While that is not mentioned in the programme for Government, it does not mean that such a strategy is ruled out.
A further challenge exists, which is that of filtering out the more significant proposals and draft measures from the veritable flood of European Union documentation now arriving at the Oireachtas. Again while that is not addressed in the programme for Government, I feel such a filtration system is needed. Perhaps it is under construction.
A system dealing with the position once draft legislation is formally proposed at European Union level has two aspects. One is securing accountability for what Ministers agree in Council and the other is the subsidiarity issue, which I have already considered. Securing accountability for what Ministers agree in Council is and is likely to remain the main democratic function of national parliaments. In Ireland it is difficult to argue we have sufficient ministerial accountability. Under the heading of Oireachtas accountability, the programme for Government states: "All Ministers will be obliged to appear before their respective Joint Committees or before the Joint Committee on European Affairs prior to travelling to Brussels for meetings of the Council where decisions are made." It is great to see such a commitment having been made and I would be very interested to hear how it is going because I am not sure how many members of this committee are members of sectoral committees. An enhanced role for sectoral committees can only be one half of the story because the experience across Europe indicated the need for a balance between centralisation and decentralisation in that regard. I would be interested to hear how members of the committee feel Ireland is doing in that regard.
Both the sub-committee reports I mentioned made reference to a scrutiny reserve mechanism. I have advocated something slightly different - a mandate system. However, neither a mandate system nor a scrutiny reserve system seems to have been committed to under the present programme for Government. There is some hint that it might be on the way in the sense that it states that "systems must be put in place to ensure that Ministers do not bypass the Oireachtas". However, I am not sure how such assurance could be provided without the establishment of a scrutiny reserve. It is important to acknowledge that the Executive has a realistic fear over a scrutiny reserve system, regarding what I would be tempted to call the Kerry South and Tipperary North problem, which is that a decision of vital importance - not just at national level but also at European level - might be held hostage, in effect, to local constituency interests if such a system were introduced. It would create that possibility which would be very undesirable. In considering whether to introduce a scrutiny reserve system, the Government faces the issue of whether it wants to run that risk or whether a scrutiny reserve should only be introduced when the Irish political system is less localised in its nature. This is a genuine dilemma for any Government. It also needs to be acknowledged that a scrutiny reserve system would tie the hands of the Government more and it would also involve less flexibility at European Union level. However, if such a system is not introduced, the democratic accountability that exists at European level is questionable. This is a real issue that needs to be thought out. The Oireachtas sub-committee has given its views on this and I will be interested to see the Government's final response on it. I will not say any more about the subsidiarity process as I have already mentioned it.
The programme for Government makes proposals with regard to a system to deal with measures adopted in Ireland to implement European Union directives and regulations. It concerns regulatory impact assessments being forwarded to sectoral committees so they can make recommendations on whether legislation should be adopted. I will also be interested to hear how this system works in practice. It does not solve the entire problem in this regard because it does not provide for the adequate following of any measures implemented via statutory instrument, which is an ongoing problem of democratic legitimacy with regard to European matters in Ireland. Unfortunately putting an end to it would involve throwing large resources at it but it needs to be seriously examined.
Often European Union legislation does not involve the adoption of legislation, such as with regard to the Common Foreign and Security Policy, the open method of co-ordination and social dialogue at European level. There is no systemised control with regard to this. One possible approach would be to bring the officials before the committee once every year to discuss, for example, the open method of co-ordination. Something needs to be done about this but no action is being taken.
With regard to a system for making the Oireachtas an effective forum for the facilitation of wider and deeper debate on European issues, the sub-committee established to examine the fiscal treaty was a great idea as was making available videos of the debates. A leaf could be taken from the book of the Institute of International and European Affairs whose website is extremely user-friendly and one can see the debates that have taken place. Greater ease of access for the public would be useful in this regard. Overall this committee in particular and its sub-committees have done good work in this regard. It was very hard for the Parliament to take up the reins laid down by the National Forum on Europe but some good work has been done in this regard.
