Joint Committee on European Union Affairs díospóireacht

Future Treaty Change in the European Union: Discussion

An Cathaoirleach

On behalf of the committee, I welcome Dr. Barry Colfer, director of research at the Institute of International and European Affairs, IIEA. Dr. Colfer is joined by his colleague, Mr. Dylan Marshall. I also welcome Professor Gavin Barrett from the Sutherland School of Law at University College Dublin, UCD. At today's meeting, we will be discussing future treaty changes in the European Union.

Before we start, there is always a little note on privilege I have to read out. All witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him or her identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks.

Members are reminded of the long-standing 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. I remind members of the constitutional requirement that they must be physically present within the confines of Leinster House complex to participate in public meetings. Therefore, any member who attempts to participate from outside the precincts will obviously be asked not to do so. In this regard, I ask members participating via MS Teams to confirm they are doing so from within Leinster House. With that note completed, I call Dr. Colfer to make his opening statement.

Dr. Barry Colfer

I wish everybody a good morning. As the Cathaoirleach said, I am director of research at the IIEA. I am also a fellow or teacher in politics at the University of Cambridge where I teach EU law. I also worked previously in the European Parliament. It is always a sincere honour to speak in Leinster House.

Despite my modest experience of working in the European Parliament, I am acutely conscious of the vast experience and years of service by members of this committee, which I commend and by which I am humbled. I am joined by my colleague, Mr. Dylan Marshall, who helped to prepare my notes for which I thank him. The committee will hear from him later.

Members will know that the European Parliament in general and the Committee on Constitutional Affairs, AFCO, in particular, are enthusiastic about treaty reform. In the broad set-up of the institutions, the European Commission represents the interests of the EU and the treaties, the European Council represents the interests of governments and member states and the European Parliament represents the interests of citizens.

However, even within the European Parliament, the AFCO committee has always seen itself as having a specific role in representing citizens, and seeking to ensure the values of the Union are safeguarded. Members often speak in the language of the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law as set out in the preamble and opening articles of the treaty which, I think, come across clearly from these proposals from the AFCO committee regarding treaty reform, which I will speak to in the next five minutes.

These 44 proposals of the AFCO committee are driven as much by instability on Europe's borders as by the prospect of accommodating up to nine new members in an enlarged union, as well as the outcome of the Conference on the Future of Europe, CoFE, process, but also a general inertia at the European Parliament for change. EU integration is often likened to a bike, as I am sure the committee has heard, where if one stops moving forward, even slowly, one will fall over. The AFCO committee has always exuded that view.

The proposals, as I am sure the committee has seen, contain some pretty unremarkable or predictable but still important provisions around institutional reform relating to citizen participation, including referendums, a greater role for the European Parliament in key appointments, greater transparency around the Council's work and the recognition of qualifications cross border. There are, however, some slightly more radical or maybe interesting features. There is a request or demand for a full right of initiative, as legislator, for the European Parliament, changes to qualified majority voting, QMV, and a renewed focus on the environment, biodiversity, energy and defence and passages on migration, which is always contentious, as well as public health. Here, we see the longer term impact of Covid through greater attention to co-operation in the realm of health, which will come as no surprise.

For an Irish audience, there are some special pieces. There are remarks about the prevention of tax havens which might be of particular interest, proposals for QMV on some matters relating to taxation, direct and indirect, but also a small provision around the five-year cycle for the multi-annual financial framework, MFF, to move it from seven years and bring it into sync with the rest of the EU's life cycle.

I will only zoom in on one feature and leave the rest for discussion with the group. That pertains to a social progress protocol, which is both interesting and potentially important in advance of the next round of treaty reforms. It is not new, but it is receiving renewed attention to ensure the "social face" of the Single Market, as the former President of the European Commission, Mr. Jacques Delors, put it.

Under the treaty, the European Union is a social market economy, as Articles 2 and 3 point to, but it is fair to say that the EU has been more market than social for the past 20 years. The proposals seek to address this, as has the current Spanish Presidency and others in recent years, through the idea of the introduction of a social progress protocol. Put simply, the EU's Internal Market and economic policies have been criticised for prioritising market freedoms and competition rules over social and labour standards. A couple of high-profile cases in the European Court of Justice, ECJ, 15 years ago - the Viking and Laval cases - confirmed the pre-eminence of economic freedoms over social rights and the European Parliament's proposals for a social progress protocol seek to correct these perceived imbalances. It was popular in the academic literature in the 1990s following the Maastricht treaty, but the idea that social imperatives and not just economic ones would steer EU law are becoming more popular than they have been for a generation. It may also be an embodiment of lessons learned following the economic and social crisis of 15 years ago, with which all of us here will be familiar. With the increase in support for Euroscepticism around the EU that this precipitated, there is probably more appetite now than for a long time for a social progress protocol to be included in the treaty. It has been long supported by the social partners, the European Economic and Social Committee, EESC, liberals, leftists and some on the centre right in the European Parliament as well.

I will mention briefly proposals around the rule of law. The European Parliament's proposals include proposals to strengthen mechanisms to address shortcomings in the protection of the rule of law by member states under Article 7 of the treaty by removing the unanimity provision for it to work. The irony of this is that it requires unanimity to change the rule around unanimity. It will always be difficult to secure necessary support. Like so much in life, it will be about timing and who is in charge in capitals, but recent shifts in Poland may be important.

Penultimately, I will mention every round of treaty reform has enhanced the role of the European Parliament, moving it from a purely consultative role until the 1970s to being a full co-legislator. The proposals include the provision of the European Parliament to initiate its own laws and have a greater say in major EU appointments. While it is unsurprising and nothing to see, it is mentioning.

Finally, I will say a word on defence, which is probably of more interest here than in other parts of the Union. The proposals call for the establishment of a defence union, including military units and a permanent rapid deployment capacity under the operational command of the Union. It proposes joint procurement financed by the Union through a dedicated budget. It specifically notes that clauses with regard to national traditions of neutrality would not be affected by these changes. This would be expected to intrude on the debate here more so than in other member states.

I am aware that this committee has done much work on enlargement in recent years. From our discussions in different capitals with governments and peer think tanks, the issue of enlargement currently ranks highly, which is not surprising. Most member states are at least nominally in favour of enlargement to Ukraine but some members, including Germany, have stressed the need for institutional reform beforehand to make further enlargement viable, as happened with previous treaties when the Maastricht, Amsterdam and Nice treaties sought to prepare the way for enlargement. Fundamentally, rules around decision-making would need to change in an enlarged EU, as is always the case. Thus, enlargement and treaty reform, the discussion for today, are essentially interdependent and momentum for enlargement should be expected to spur treaty reform. As such, the Parliament's proposals should be taken seriously.

The challenge for member states in favour of enlargement is the need to bring the public along, of course, and to be honest about the fact that enlargement comes with challenges relating to costs and an inevitable further tilt to the east, as well as advantages. In any debate about treaty reform or enlargement, governments would need to talk about the costs of non-enlargement, as well as the benefits of enlargement in terms of security, arresting Chinese-Russian influence and the EU's credibility on the global stage, among much else, but that is for another day.

Professor Gavin Barrett

I thought I would begin with a dramatic flourish by saying a spectre is haunting European capitals, the spectre of treaty reform. Once more, for the ninth time, if I have calculated correctly, right across Europe debate is now being quietly conducted as to whether, when and how the European Union's basic treaties need to be revised, with the emphasis gradually changing from whether to when and how.

That debate has broken through to the surface on a few occasions, for example, in many of the 2022 proposals of the Conference on the Future of Europe, while an alleged 95% of those did not involve treaty change, others did; in a September expert report that was advanced, even if not technically endorsed, by France and Germany in September; and in the 25 October report of the European Parliament’s Constitutional Affairs Committee, which Dr. Colfer has gone through so expertly.

The question that arises is why this debate is happening now. One driving factor is that change is overdue. Despite a rapidly changing world and the deepening and widening of the European Union and its activities, the foundational treaties have not been overhauled since the entry into force of the 2007 Lisbon treaty, which, itself, largely reflected compromises arrived at in the failed 2004 constitutional treaty. Remarkably, the treaty provisions on economic and monetary union, EMU, remain for the most part unchanged since the Maastricht treaty was agreed over three decades ago, in 1992. That is a glaring omission that has necessitated the relevant treaty provisions being supplemented by a mishmash of non-EU treaties, secondary legislation and soft law. That is one driving factor - the fact that change is probably overdue at this stage.

Second, since Lisbon, the European Union has been struck by a wave of challenging crises that have shown up the deficiencies in the legal structure. We are talking about events such as the banking and sovereign debt crisis, of which we do not need any reminder in this country, the migration crisis, the rule of law crisis affecting, in particular, Hungary and Poland, Brexit, Covid-19, and, most recently, the Ukraine war, which exposed the EU's inadequacies in the foreign and defence policy and energy policy fields. The shock instilled by that last crisis, perhaps more than any other crisis, has added a sense of urgency to the drive for reform of the EU and making it more fit for purpose in today's world.

Last, but very much far from least and linked to the situation in the Ukraine, is the need, once more, for the EU to enlarge. As Brexit recedes in the rear-view mirror, eight countries on the eastern borders have been granted candidate status.

They are: Türkiye in 1999; North Macedonia in 2005; Montenegro in 2010; Serbia in 2012; Albania in 2014; and, most recently, Ukraine and Moldova, in June 2022, and Bosnia and Herzegovina in December of last year. Two more countries, Georgia and Kosovo, are knocking on the door. Admittedly, some of these candidatures lack reality. With these countries, as Alberto Alemanno has observed, the EU is pretending to negotiate accession and the countries in question are pretending to carry out the needed reforms. Türkiye's relapse into autocracy and its foreign policy choices have meant its admission process has been frozen indefinitely. Similarly, Serbia's approach to Kosovo and, latterly, its ambiguous stance towards Ukraine, as well as its own rule of law issues, have caused problems. Political turmoil in Montenegro has led to its admission process stalling. Nonetheless, enlargement is coming and it is accelerated by fears of an aggressive Russian state on the eastern side of the Union. Whenever enlargement happens, reform must come with it. If reform does not happen, the danger is that enlargement could lead the EU to expand without an adequate strategy to ensure its continued efficient functioning.

It is clear that preparations for enlargement will require elements other than treaty reform. Enlargement will require major financial preparations and sacrifices. An internal paper by the Council secretariat leaked to the press in October noted that if current budgetary arrangements are maintained, the potential accession of nine new states, leaving Türkiye out of the picture, would add an extra €250 billion to the cost of the multi-annual financial framework. Cuts to Common Agricultural Policy, CAP, subsidies to existing member states of approximately one fifth would be required. Countries like Czechia, Estonia, Lithuania, Slovenia, Cyprus and Malta would all lose entitlement to cohesion funding. Ukraine would be entitled to €96.5 billion of CAP funds and €61 billion in cohesion funding. All member states will end up having to pay more to, and receiving less from, the EU budget. Many states that are currently net receivers will become net contributors. Of course, il ne faut pas exagérer. Nine states are not going to join the EU any time soon. If and when enlargement takes place, the current budgetary model will not be adhered to because it would be politically impossible, but there will be a need for adjustments, safeguarding measures and increased contributions. The budgetary implications of enlargement will need to be agreed by 2027. It is a truck coming down the road at us.

The other truck coming down the road is treaty change, which also must be part of the enlargement dynamic. We have been here before. It is exactly the same dynamic that drove agreement on the 1997 Amsterdam treaty and the 2001 Nice treaty, both of which were ex ante attempts to prepare for the massive enlargement of the EU by ten states in 2004 and a further two in 2007. That enlargement, too, was driven in large part by fears of Russia on the eastern border. In her September state of the union speech to the European Parliament, the Commission President, Ursula von der Leyen explicitly anticipated the possibility of a European convention and treaty change in the context of enlargement. There tends to be a certain coyness about treaty change. President von der Leyen carefully hedged her bets with the observation that the EU should not wait for treaty change to move ahead with enlargement. Moreover, if we look at the recent Granada declaration made after the October European Council summit, it merely declared that in parallel to the reforms demanded of aspiring EU members, the EU needed to lay the "necessary internal groundwork and reforms". The German minister for Europe, Anna Lührmann, is correct in saying, while advancing a research paper advocating treaty changes, that enlargement and reform must go hand in hand. It is clear that treaty reform is on the agenda.

What treaty reforms should we anticipate? There have been three prominent generators of ideas so far. The first was the May 2022 report of the Convention on the Future of Europe, which issued 49 recommendations and more than 200 individual proposals. They ranged across the spectrum of activities of the EU, including the economy, social justice, education, sport, European democracy, values and rights, migration and Europe in the world. Only some of them require treaty change but the idea that it might be required inspired an immediate reaction, with 13 member states signing up to a so-called non-paper that attempted to strangle at birth any idea that the Convention's ideas should lead to treaty reform. They stated: "We already have a Europe that works. We do not need to rush into institutional reforms in order to deliver results." Nonetheless, the Convention's proposals live on as ideas and have influenced the European Parliament in its calls for treaty change. The Convention on the Future of Europe, then, is driver or generator of ideas number one.

The second source of ideas was the September 2023 report of the Franco-German working group on EU institutional reform. The report was put forward by France and Germany but was written by independent experts, which enabled the two countries to say it did not necessarily represent the official French or German position. It advanced a range of ideas, including a widespread end to unanimity in favour of qualified majority voting. That comes up in every proposal. The idea in the Franco-German proposals is that it would be balanced by increased voting power for small member states in the qualified majority voting system. Other proposals put forward in the Franco-German paper include strengthening the ineffective rule of law requirements, facilitating the issuance of common debt and a shortening of the budget cycle to coincide with the five-year electoral cycle. Most eye-catchingly, the report also revived the idea of a multispeed Europe, or more exactly, a system of concentric circles of integration composed on the outside of the European political community and, inside that, associate members, that is, EEA members, and inside that again, existing European members. Interestingly, at the core would be members that would integrate further without other member states being able to stop them doing so. The second source of ideas, then, has produced a proposal for a concentric Europe.

I will not say too much about the third source of ideas because Dr. Colfer has already dealt with it in great detail. I refer to the October report of the European Parliament's Committee on Constitutional Affairs. It included various proposals, as outlined by Dr. Colfer. I note in particular the perhaps not overly inspiring calls for an increase in its own powers at the European Parliament. I do not know how far they will go. There was also a call for more qualified majority voting and various other changes, including on citizenship requirements.

It is important to stress that ideas like these represent only the first shots fired in a debate that will no doubt see a large number of proposals being made. Other member states are working on their own proposals. Experts from Denmark, Sweden, Finland, Poland and the Baltic states published their ideas in July. Ideas like enhancing EU-level democracy, adjusting the EU's crisis response framework under the Common Foreign and Security Policy and updating provisions in areas such as economic and monetary union will undoubtedly find their way onto the agenda. In particular, a Common Foreign and Security Policy dominated by unanimity voting has proved really problematic. Not to put too fine a point on it, it has been used by Hungary to blackmail the EU in order to get more funds.

No discussion of treaty reform can avoid discussion of the stone in the midst of all, which is the Article 48 Treaty on European Union amendment process. It requires not alone the unanimous agreement of member states but subsequent ratification by all member states in accordance with the respective constitutional requirements. The implications of this for the prospects of treaty reform should not be underestimated. We have already had referendums over the years in Ireland, Denmark, France and the Netherlands that have thrown a spanner in the works of treaty reform, even in the days before Internet disinformation campaigns. Referendums have appeared to be a sufficiently unpredictable prospect for some member states to disincline them to agree up to now to treaty revisions. I am interested in the Franco-German paper in this regard. It advocates that in the case of a negotiation deadlock, the fallback option of a supplementary reform treaty, such as the European Stability Mechanism, ESM, treaty, between the member states that are willing to move forward. The reference to the ESM treaty is interesting because that particular treaty was enabled to come into force when instruments of ratification had been deposited by signatories whose initial subscriptions represented only 90% of the total. Similarly, the fiscal stability treaty, on which we had a referendum in Ireland, could enter into force when a mere 12 contracting parties whose currency was the euro had deposited their instrument of ratification. The point I am making is that I am not sure a situation where each individual state can veto change for the entire EU will be acceptable. Of course, every member state can, should and always will be able to veto change for itself but as regards being able to veto change for the entire Union, I am not sure that is sustainable.

It is interesting to see that there is a kind of plan B built into the Franco-German paper in that regard. We will have to see where that goes, but there is, of course, a long process ahead of us in respect of treaty change. This is just giving the committee some ideas of the context and where we are now in this regard.

An Cathaoirleach

I thank the witnesses. Those were two very interesting opening statements covering a wide range of issues. I call Deputy Howlin.

Deputy Brendan Howlin

I thank our witnesses. As was said, the opening statements covered a broad range of issues, many of which we have touched on with various speakers in this committee in recent years.

I will pose several questions on Professor Barrett's paper, but I would like both Professor Barrett and Dr. Colfer to respond. On the comments Professor Barrett made on the EMU, basically saying that because of the lack of movement since the Maastricht treaty we have modified matters through supplementary non-treaty secondary legislation and what he called soft law, as someone who worked in the finance area over the past while, I would be interested in hearing specifically what he means by that statement. I ask because I am not clear on exactly what difficulties needed to be overcome and how they were overcome.

My next query is much more fundamental and I have asked this of several people who have come before the committee. I refer to Professor Barrett's view that Türkiye has relapsed into being an autocracy, meaning its admission process is on hold indefinitely. I do not think anyone would disagree with that. My question relates to the structure of the Union itself, which is a much more fundamental issue. It can be said that an autocratic country cannot join but it is not possible to stop an existing country becoming autocratic. What is the impact of this?

While the normal suspects, Hungary or Poland might be instanced, or even Slovakia now after the most recent elections, I put this question directly to the French ambassador. Whatever we might be able to sustain with an autocrat in power in Slovakia or Hungary, we could not survive a Marine Le Pen government coming to power in France. Is there a naivety about the structure of the Union itself, in depending on the outcome of the next presidential election in a country like France for its very existence? What are Professor Barrett's thoughts on dealing with this issue?

My next question deals with the EU's exposed inadequacies in foreign policy that need to be addressed. Is the issue here, and this is probably related to the previous point I made, that there are not inadequacies in foreign policy in the Union but fundamental disagreement? We cannot simply say we will have a legal mechanism to make everybody think the same. As a nation and a Parliament, we fundamentally have a different view on what is happening this minute in Gaza from Germany. There is almost a naivety again regarding the notion that we can structurally make people in the European Union think the same way on matters of international policy. This is not going to happen. We are not an integrated state that has a common and undivided view of events in the world.

My last point deals with Professor Barrett's strong focus on the Franco-German working group paper and its recommendations. It will be recalled that we discussed this point with our Minister of State and he was quite dismissive of it on two fronts. One is that is a single paper among many. It got, obviously, a degree of prominence because it was allowed to be presented to the General Affairs Council, GAC, but the Minister of State certainly did not believe that it was going to run as a real issue. We have resisted as a nation, as have most smaller nations, the notion of a two-tier or two-speed Europe, consisting of concentric circles or whatever. There have been various presentations of this concept over time but this would be a worrying one.

I am also taken by the point that Professor Barrett made on the current process for amending European Union treaties. I refer to the view which exists that it is too bothersome in many ways because it would require referendums in countries like Ireland and that, because of this, a mechanism might be sought that could avoid referendums. If there is anything that would kill the European project, though, it is the notion that someone is trying to get around putting issues to the people. I fully appreciate that it will not only apply to referendums in future. It is a very real issue. I will be saying something about it this afternoon in the debate on the new electoral commission and its work here. Dealing with misinformation and disinformation is going to become all the more real in terms of the impact of artificial intelligence, AI, in future, which will allow for the creation of fake presentations claiming to show the Cathaoirleach of this committee making statements he has never said.

The Council has to confront the fact that we have a serious problem in Hungary and we had a serious problem in Poland and it will not go away. If it were to spread as far as France, we would really be in trouble. Treaty change is part of the solution but it is certainly not the whole solution.

The Deputy is absolutely correct that it exposed inadequacies in foreign policy. Jean-Claude Piris has also made the point that legal solutions cannot be provided to political problems. The fact that there is no agreement on foreign policy - the Deputy gave the good example of the situation in Gaza on which member states do not agree, as can be seen from how they vote at the UN - cannot be solved by reform of the Common Foreign and Security Policy. Yet, other things can be solved by its reform. There was pretty much universal agreement on the Ukraine war, but what is happening at the moment is that Hungary is quite frankly blackmailing the other member states. It wants access to European Union funds and it refuses to approve anything that relates to Ukraine unless it gets those funds. A workaround will be found for that, which will probably involve member states going outside the European Union to take action together, as was the case with the European Monetary Union, EMU. We need to see some changes, but I am entirely in agreement with Deputy Howlin that the changes in the Common Foreign and Security Policy will not solve the fact that different member states have different approaches to foreign policy matters. There is no doubt about that.

The Deputy mentioned that a previous witness who was before the committee dismissed the Franco-German paper.

Deputy Brendan Howlin

It was played down.

Professor Gavin Barrett

Okay, let us go with played down. Careful attention needs to be paid to any paper that is put forward by France and Germany. I recall that walks along the beach in Deauville by a French President and German Chancellor led to major changes in the European Union. Agreement between France and Germany tends to be necessary but not sufficient for treaty change at European Union level. They are only two of the now 27 countries but they are important countries. I note the fact that they were able to present the paper at a European Council meeting. The other paper I mentioned, the Nordic-Baltic paper, did not get that kind of presentation. It shows that attention is paid. They were careful to say that they are not bound by the proposals put forward in the paper, but it is interesting that those ideas are being put forward and considered by them. I would be surprised if at least some of the ideas in that paper do not find their way into the ultimate treaty proposals.

On amendments to the treaty, I should be careful. I certainly would not want to give the impression that I was speaking out against referendums. If countries want to have referendums on treaties, that is entirely up to them. The concern is that a situation where each and every member state is able to veto change, not only for itself, but for the entire Union, is probably not sustainable in the long term in a European Union of 27 or more member states. When the United States constitution was agreed, the provision for it to enter into force was if nine of the 13 states in America voted in favour of it. Rhode Island voted against it and therefore voted itself out of what became the United States, but it quickly changed its opinion. If it had been able to veto the entire constitution or articles of confederation at that stage, we would probably have seen a different result. It is less that I am trying to launch a campaign against referendums, if you like, and more that I am simply raising the issue that the current Article 48 position, whereby every member state can veto change for all of the European Union, is unlikely to be sustainable. I was interested to see in the German paper the references to the European Stability Mechanism, which seem to be an indication that a workaround might be being thought about.

Dr. Barry Colfer

I have five short comments and I will seek not to echo what Professor Barrett has already said. The one on soft law I will leave to him. I should have mentioned that Professor Barrett was my EU law professor, back in the day.

Deputy Ruairí Ó Murchú

Was he any good?

Dr. Barry Colfer

He was all right. Look at me now.

On what Deputy Howlin said about autocracy and the risk of further slippage, there are three things that can be done practically. One is hard, one is less hard and one is slightly easier. One is to change the rules around Article 7, which the Deputy accepts is difficult. The second is to make more EU goodies contingent on the protection of the rule of law and fundamental factors of public administration and so on. The third is for the EU just to promote its values and seek to bolster democratic institutions in the bloc. As easy as it is for me to talk about them as a researcher, many of the countries that are members of the EU were not full democracies a generation ago. I am patient. It is terrible to see what is happening in - we always single them out - Hungary and Poland, but it takes time for democratic consolidation to conclude. The EU has a role in trying to bolster and support its members on that journey.

On the inadequacies and fundamental disagreements in foreign policy, as the Deputy said the EU is not a state and it never will be. It has a plurality of interests. It does not need to have a fully fledged foreign policy. What it needs to do is or where it can add value and be helpful is around supporting the development of institutions and police forces in other parts of the world and so forth. These activities can be categorised as foreign policy. The EU should do more of that and less of the contentious stuff.

On the French and German paper, Professor Barrett used the words I would say. It is absolutely the case that French and German support is necessary but it is not sufficient for treaty reform to happen. The paper was presented at the General Affairs Council, which is a serious audience. France and Germany still hold enormous weight. In fact their paper probably holds more weight than the European Parliament paper I spoke about at the outset. Certainly, people play down the importance of France and Germany at their peril.

The Deputy made an important point that is often easily overlooked, which is that there is already a two-speed Europe in many ways such as with the currency, the Schengen agreement which we are not a party to, and the protocols, some of which Ireland enjoy. More of this is inevitable in a more developed and plural European Union. That is one lever the EU institutions will continue to pull.

I will make a broad political point about getting around the citizens. Needless to say, leaders also do that at their peril. The Deputy may remember that it happened in the UK. Blair, Cameron and the Liberal Democrats all promised referendums which they did not deliver and they suffered the consequences. This is the big one. The public space needs to be protected.

Deputy Brendan Howlin

Cameron delivered on one and it did not work out well for him. He is back, I suppose.

Dr. Barry Colfer

Indeed, but he had also promised before being elected that he would hold a referendum on the Lisbon treaty and he reneged on that promise, saying it was too late, which in fairness to him, it probably was. The Deputy is correct.

The big one is easy to say and hard to do. In Ireland we still enjoy a robust and rich public space. We are often contacted by think-tanks and academics in other places asking about our tradition of citizens' assemblies. It is sensitive to say so in this room, but we have a strong public broadcaster. We are looking at regulating artificial intelligence, AI, and other things we have to do to try to protect what we have.

I think I am agreeing with what the Deputy said when I say we have to include citizens and try to advance how we engage with them, rather than trying to avoid them. We do so at our peril.

Mr. Dylan Marshall

I will make one point on referendums. It is not only about treaty reform but also about enlargement. Some member states, such as France in its constitution, require referendums for enlargement, for the admission of new member states into the Union. The Franco-German paper proposed joining the reform treaty with the accession treaties as a kind of backstop against one big treaty reform. For example, if Ireland were to hold things up with a referendum, you would still have the enduring problem of the administrative treaty in France. There is no way to get around citizens in these circumstances.

Deputy Seán Haughey

I thank the witnesses for their presentations. The citizens of the EU are pretty exhausted at this stage and stretched. We have had the financial crash, Brexit, the pandemic, the Ukraine war and the cost-of-living crisis. Although treaty change needs to be addressed for many reasons, I am not sure there is much appetite for it among citizens at the moment. They are certainly not engaged with it.

As the witness said, enlargement will be a big challenge. Ireland, in principle, favours enlargement but as the witness pointed out, it will have implications for decision-making and the budget. Following the Conference on the future of Europe, the Minister of State was at the committee and was of the view that the existing treaties need to be utilised to the maximum to deliver on most of the recommendations. Are the existing treaties not fit for purpose concerning enlargement? Can we get by using the existing treaties?

There are various institutions in the European Union. Concerning the European Council, we are one of 27. In the Commission, as far as I know, we are one of 27, and there is the European Parliament. For those reasons, I am not always in favour of giving more powers to the European Parliament. I think Ireland might lose out in that process. Perhaps that is not a democratic thing to say. Concerning these proposals and the position of having one Commissioner per member state, how is it proposed to change that in the European Parliament paper? It was a big issue in Ireland during our various referendums - the late Professor Basil Chubb told me it was referendums, not referenda. I wish to ask about the ratification processes across the 27 member states for treaty change. For example, Ireland has not ratified the Comprehensive Economic and Trade Agreement, CETA. I think this committee, unfortunately, has to take some credit or whatever for that because we could not reach agreement. Therefore, it has not gone to the Dáil and Ireland has not ratified it. It shows how difficult it is to get ratification. I can only imagine what it would be like across the 27. That is not necessarily a question; it is a comment.

I saw in the media in the past day or two about getting military aid to Ukraine and that there is disagreement from Hungary and Slovakia. Was there some mechanism proposed that each member state would just do it, not necessarily under an EU umbrella? Is that the model that may be used more and more? I am not sure if the witnesses are in a position to comment on that. The appointment of the presidents of the Commission, the Council and the Parliament and the EU foreign policy chief is very unseemly and the wheeling and dealing will happen again next year. It is raw politics in action. Are there proposals to change that process? It is on our doorstep. It is about to happen. Are there any suggestions on how those appointments will be pursued in the future in the context of the European Parliament paper?

Dr. Barry Colfer

Regarding whether the treaty can be used for enlargement as it is, I will defer to the professor for the specifics on treaty provisions, but as I said in the last point I made in response to Deputy Howlin, even if it can be, I would handle that with great care. Trying to persuade a French or Irish public that we can enlarge without asking them would be deeply unpopular.

On the size of the European Commission, I think someone acknowledged that our experience with the Lisbon treaty boiled down to several things but that was the most prominent and lasting. Other small member state think tanks often state that Ireland helped to protect one Commissioner per member state. I would be gobsmacked if that were to change; I would oppose it.

To the Deputy's point, ratification will be difficult. It always is. It was just a comment so I will move on.

What the Deputy said about countries acting bilaterally when it gets difficult already happens when it comes to aid for Ukraine. When the EU becomes logjammed, whether it is Hungary or something else, aid can still flow but it would be from capital to capital rather than via the level of the EU.

I will make a few comments about appointments and the horse-trading that happens in the aftermath of the European elections, who gets what and having to strike a delicate balance between geography, political hue, gender, who got something last time and who gets something this time. I do not see it as unseemly. The Deputy referred to it as raw politics in action. It is one of the most important times in the EU's life cycle and a time when citizens may gripe and complain but it is when the EU feels at its most democratic. I would be sad to see that go but that is my area of interest. When Commissioners present to the relevant parliamentary committees, we saw important interventions by Irish MEPs last time round to ensure the people in these important jobs are up to the mark. It will not change before next June, next June being the next European elections.

On the European Parliament's proposals, there is an important one to flip what happens. Currently, in the composition of the Commission, the European Council nominates Commissioners and then the European Parliament votes on whether to accept them. Historically, before the Lisbon treaty, the Parliament could only accept as a whole. It was all of the Commissioners or none. Now, it is done one by one, as I am sure the Deputy knows. The Parliament proposes that it should, taking account of the results of the European Parliament elections, nominate Commissioners, which is then confirmed by the Council. I see that being deeply unpopular, needless to say, with member states but it is what Parliament has asked for.

Professor Gavin Barrett

Regarding the lack of appetite for treaty change, there is a collision between the objective need for treaty change, driven by factors I mentioned. Many of the provisions are outdated. The provisions for economic and monetary union date back to 1991. They are several decades old and have been superseded by non-European Union treaties, soft law and secondary legislation to an extent that, democratically, it would be better to have some of that in the actual treaties.

There was a series of crises. Take, for instance, the role of the European Union in health matters and vaccinations. There is huge co-ordination at European Union level, yet if you look at treaty provisions on health measures, it just describes the European Union's role as a supporting competence. It is not reflected in reality. Health institutions have been created that need to be reflected in the treaties. There is also the enlargement process coming up. All of these factors drive treaty change. There is not huge appetite for treaty change, which you could see in the reaction to the Conference on the Future of Europe. Thirteen states: Bulgaria, Croatia, Czechia, Denmark, Estonia, Finland, Latvia, Lithuania, Malta, Poland, Romania, Slovenia and Sweden, all said they did not want treaty change at that point. There is a collision there. It is a question of needs must. That is what drives treaty change, not the citizens of Europe rising up and demanding it. That is not where it is coming from.

The second question was if we could get by without treaty amendment and it if would be possible to get by on the existing treaty provisions. In von der Leyen's state of the union address, she said enlargement can happen without treaty change. If it were possible to do it, she would be happy to. Similarly, in recent European Council conclusions, it did not mention the words "treaty change" or the "T" word or words. Objectively, there is an element of the second-best solution about keeping away from treaty change. We will see a proposal; it is coming down the tracks. We will have to see what happens. It is possible it will run into the ground in the same way as the constitutional treaty amendment and replacement treaty provision proposals, but it will have to come. There is too much noise about this at the moment for it not to take place.

I am a fan of one Commissioner per member state myself because as much for the Commission's sake as anything, it keeps the Commission grounded. In terms of awareness it is a very good thing to have one Commissioner per member state but I cannot ignore the fact that an awful lot of people think that it is inefficient to have 27 Commissioners. There are not enough jobs for the lot of them and there is not a cabinet in Europe that has 27 members. It is just too big for that. There are two arguments related to it. Ireland's position prevailed because of the Lisbon referendum in that regard. There was not actually a treaty change related to it but the discretion of the European Council was exercised to maintain the Commission at the size it is at. I cannot say there is not still controversy about this and in my view it will be revisited. It will be looked at again in the context of treaty negotiations.

On assistance to Ukraine, there is less worry about a Hungarian veto in this regard than one would expect. I have seen references in the media to states saying they are comfortable there is a workaround, which will involve something of the same workaround that was initially used to provide financial assistance to member states during the crisis. That is, that it would be provided in individual member state business. In reality they are acting together but they just leave Hungary out of it. I think that is what will be used to get around that.

Deputy Haughey is correct that the big jobs situation is very unseemly. It reminds me of Churchill's quote about democracy and to some extent the European Union is the worst possible solution, except for all the others. At times, it ain't pretty and there is no doubt about it. We just need to remember the alternative in that regard. As regards the appointments procedure, Dr. Colfer has already dealt with that. The European Parliament has increased its powers in every single treaty reform we have seen as it goes along and to some extent I am not a fan of the Spitzenkandidat process to be honest and I am not a fan of the proposals that have been put forward for increasing its own powers in the latest report.

Deputy Ruairí Ó Murchú

I thank Dr. Colfer, Professor Barrett, and Mr. Marshall - and no offence I am fairly sure he has some sort of letters before or after his name. I sat on the Conference on the Future of Europe and at times it was incredibly interesting and at other times it probably went down a number of culs-de-sac. There was probably an element of over-focus on Hungary and a simplistic notion that if everyone in the room agrees and somebody does not, we need to find a workaround for that. We all know there are protections as regards unanimity and while I accept that the witnesses are talking about a more streamlined Europe, there are particular dangers and fears that I have.

Professor Barrett spoke about how there is not a health competence at European level but I would say that one of the biggest arguments that can be made is that through the whole period of Covid-19, as we were able to put the vaccination system in play, there was an element of states being able to agree with one another, because it was in their interests to do so, and we were able to deliver far better. There is probably an element where some people would have said, simplistically, that it would be easier for the Chinese and the Russians to deal with these issues but it was shown that it was not. It was one of those cases where democracy worked and it is always difficult to get agreement.

I would also be very worried if we are talking about foreign policy at the minute. In fairness to Deputy Howlin, he spoke about the issues in Gaza. I will use an example. There was a statement by Josep Borrell on humanitarian pauses but in the middle of the statement it read that, "The EU condemns the use of hospitals and civilians as human shields by Hamas." My difficulty with that language - and there are questions as to who agreed this from an Irish Government point of view - is that it basically gives a green light or cover to a regime that is willing to attack hospitals, let us be clear on that. That is an issue I have. There must be protections.

Here is my single transferable speech on the European Union. If we were back during the period of austerity, people would say we could not sell the European Union no matter what we were paying people and they were thinking more in terms of they were paying quite a lot at that stage. We did not expect the element of support we got through Brexit. That was probably an eye-opener for a lot of people and it was the idea of the importance of the Single Market, the importance of the European Union, and also how complicated the world is. That has been a lesson to the British Government but it is not always great at learning from these lessons.

Obviously we had the Covid-19 period. Even beyond that, geopolitics has taken a serious turn in the last while and a lot of the notions we had have been thrown out of the window. With the difficulties the witnesses explained, we largely have been able to come to some sort of actions and sanctions regarding Russia. I have particular issues around Gaza and I know things are thrown out regarding Germany's history and what happened right across eastern Europe but I am not sure I buy that completely. I know I am slightly off topic but just in the sense that this did not seem to be the same issue in Yom Kippur when Israel was looking for European help. That is a separate point. Europe needs to get real on that and there is probably an element of an Irish Government - and if we do have particular fellow travellers, we have to come together. It is no different to everyone coming together on an issue and leaving Hungary out of a particular decision if that is what is required. I do not think anyone is particularly shocked that nobody is looking at or hoping for treaty change and referendums but if we have problems and issues in the long term that need to be dealt with, the only way to deal with them is by going to the people.

The witnesses threw out some of the realities about accession and one very interesting thing that happened in the Conference on the Future of Europe, if I think in particular of what we got out of a number of French and even German citizens, was this idea that we have particular rule of law issues and really need to get our whole house in order before we will consider anything. That was not even talking about the western Balkans or Ukraine. In the middle of this, circumstances changed with the Russian invasion and even then, it took some time for the language to be changed. It was then changed. Now we have the particular circumstances in which Ukraine finds itself and where Moldova and even Georgia have been somewhat upgraded in the last while.

The point regarding the CAP is we will eventually get to that real-world scenario of "Show me the money", and whatever. None of us want to see and do not know how a two- or three-tier Europe would work but I am not entirely sure how the passage way goes. However, we hear about the issues the western Balkans have had and what they are saying is, "Show us a real roadmap. You have held us back for too long and you were not very serious for a considerable amount of time and if you do not give us an option into the European Union." We know that the European Union with all of its difficulties has been a bastion of hope and democracy and if we do not give them that option then there will be other options. Some of the players who are already at work there will have different ideas and that is it. On some level, as much as I would never accept most of the arguments of Guy Verhofstadt, there is an element of truth that we are in an age of empires. It is probably no different than any other time in history but we just believed for a period that it was.

I will finish on-----

Deputy Brendan Howlin

Thus ended the first lesson.

Deputy Ruairí Ó Murchú

I did not either. I will be interested to see how far it goes.

Dr. Barry Colfer

I will say four quick things, because Professor Barrett covered vaccinations. That really showed the limits of what the EU can do without fundamental change. Alongside NextGenerationEU, the Covid recovery, it would be risky to do anything major on that scale again without taking the citizens with us. On the well-documented atrocities in Gaza, the diversity of views just proves my previous point about the limits of EU foreign policy. If you want to talk about something unseemly, just watch the disagreements across the capitals regarding that atrocious conflict. It confirms my view that EU foreign policy will remain limited in nature.

I will also comment about something else the Deputy touched on. The support Ireland enjoyed during the UK's protracted withdrawal from the bloc is worth mentioning briefly. Among many other things, that focused the minds of some wavering member states, or those which would occasionally say that if things that did not go a certain way they might also look at leaving. For all of its flaws the UK has an extremely well-regarded civil service. For that country to have such a tough time leaving, it focused the minds of some of the countries - or more rightly, parties - who would have called for an exit. I do not know if that makes treaty reform more or less likely. It certainly changes the dynamic a bit. It takes one veto off the table, because member states will be much less likely to leave after that experience.

I was obviously not as involved in the Conference on the Future of Europe, CofE, as the Deputy, but I followed it. I get what he says about the simplistic nature, but it was ever thus. If you ask non-experts to look at something really complicated while they are dealing with all the other complexities life throws at them between work, family and everything else, it will always be simplistic. This is not to disagree with the Deputy, because I had more limited insight attending the meetings we had in Dublin. I thought representation felt quite good. There seemed to be people from all walks of life, but you are still taking several weekends out of your year. Only a certain cohort of people can do that. My issue with CofE is not necessarily around representation, which I need to take a closer look at. It is at the prospect and scale of asking citizens. One of the good things about our citizens' assemblies, which people take great interest in, is that they are both expert but very specific. It says we are looking at this question, and this question alone.

As with my last remarks, I will end with something big. Jean Monnet said that, "Europe will be forged in crises, and will be the sum of the solutions adopted for those crises." Each treaty reform has had a thing, whether a crisis, or a conference or a coming together of things. The Single European Act had the Single Market. The Maastricht Treaty had the euro and the establishment of the European Union. The Amsterdam and Nice treaties had enlargement. The reconstruction of Ukraine, let us hope it is sooner rather than later, will probably be the next critical juncture. The United States will have a different attitude towards the reconstruction of Europe than it did in the 1940s, 1950s and 1960s. I would not say all bets are off. However, when it comes to taking responsibility for what Pat Cox has called a big, agricultural, poor pro-European country on our border, I can see that being the thing that focuses minds in the next phase of treaty reform. We had not really mentioned it, so I thought I would mention it.

Senator Michael McDowell

I will not take too much time here. The first thing we have to be pragmatic about is the political landscape internationally. The US and French elections are coming up. Who will be in power in Paris? It may well be that Le Pen will be the next President of France. There will obviously not be a reversal of Brexit, but the inclusion of David Cameron in cabinet suggests a consciousness at the top of the British administration that the relationship with Europe cannot be left to the European research group types - the Suella Braverman type of person. Reality is beginning obtain there.

On the Franco-German paper, I was discussing this on a confidential occasion with an Irish person who is interested in these matters.

The view I was given is that there is no great unanimity of thought between Paris and Berlin at all and this paper was a bit of an anomaly because it was not reflecting some forthcoming initiative.

I take the point Professor Barrett made about the 13 member states that said “No” to treaty change. Some of them are small but, when put together, the others are all of Scandinavia and all of the Baltic. That is a significant bloc in European politics.

Going back to the Franco-German paper, this notion of the inner core members is floated every two years. It bubbles up like Mount Etna and goes back down again. However, nobody is stopping them integrating in any way they like. They can share anything. They could integrate their governments and nobody in the EU could object to the whole process. I think there is an artificiality in this notion that there is a kind of a ferment across Europe that there must be treaty change but I do not see it reflected anywhere except in the community of diplomats and academics for whom this is a valuable area of study. I just do not see the French people saying they want treaty change. I do not see the Germans saying there must be treaty change. I just do not see the signals that there is in any way an appetite for it. The point is that things are ticking over.

Going to the health issue and Covid, what was stopping co-operation between European states? Virtually nothing except a bit of tension with the UK. There was nothing stopping them co-operating. Professor Barrett made the point that if things are happening, they should be democratically reflected in the treaties. I do not necessarily accept that proposition. I think things can happen on a European level that do not have to be either reflected in the treaties or democratised via the treaties. The partnership of member states can deal pragmatically with another Covid epidemic insofar as they have to.

I would also warn, with regard to the far-right, that if you start saying Europe will tell you what your health policy should be, you will have big problems. If you start telling Irish farmers that Europe will have sole competency on environmental, climate change and land use policies, you will stoke up an awful lot of opposition. I know there are people who think that Europe is like a bicycle and if it is not going forward, it falls flat. However, I think it is ticking over reasonably well at this stage. This discussion today is useful and I thank the speakers for coming but I wonder whether doing little or nothing on the constitutional front is not the wisest course.

I throw those questions out to the witnesses.

An Cathaoirleach

I cannot remember who went first last time, so since Professor Barrett is nearest to me, I invite him to respond. He can start.

Professor Gavin Barrett

Some great issues were raised there as have been raised all through the session. The Senator mentioned the changing political landscape. I do not know what happens if Marine Le Pen comes to power in France, to be honest, and what implications that would have for the EU. I suspect somehow it would be shuddering blow to it but I also suspect it would continue because Franco-German co-operation is just so necessary.

Senator Michael McDowell

I agree with Professor Barrett that it is necessary, but it is not sufficient. I forgot to mention the flip in Poland. Will that not be saying to people that they do not have panic about Orbán because time will sort him out?

Professor Gavin Barrett

The change in Poland is a major change for the good. I think most people would think that Poland was moving down a slippery slope that we would not want to see it go along. Unfortunately, the situation in Hungary has gone much further than that. If one saw the newspaper reports at the time of the last election in Hungary, it was almost a joke. Every local newspaper in Hungary had the same headline in it: “Isn’t Orbán Wonderful?” or something like that. The judiciary, a subject dear to the Senator’s heart, has been completely undermined there. It is a kleptocratic, autocratic Government and it is a serious problem. Even in the last elections there were serious concerns about the integrity of those particular elections. Therefore, I am not even sure it is possible to get Orbán out of power by democratic means at this stage. Of course, as has been said by other speakers here, it is not just Poland and Hungary. There are other countries as well in which serious rule of law issues have arisen.

Senator Michael McDowell

Slovakia.

(Interruptions).

Professor Gavin Barrett

There is another country the Senator did not mention but I know he would have if it had come to mind, and that is the United States if Donald Trump comes back to power. Particularly with regard to support for Ukraine, Europe could be left high and dry. Will Europe be able to step up to the plate in that regard?

I agree with the Senator about the UK. It is moving back. There are two ways of taking Brexit. One is aligning more closely with the EU, which is the sensible economic thing to do even though it leaves the UK without the voice it had when it was in the EU, and the other is moving away. I am glad to see things like the Windsor Framework and other recent initiatives taken by the UK Government, which indicate it is taking what I consider the more sensible option, and I think that will continue under Keir Starmer if and when Labour takes power.

On the Franco-German paper, no great unanimity and the possibility of there being no treaty change, with so many countries having objected to the idea of treaty change in relation to the Conference on the Future of Europe, the danger exists. Every country has a veto on treaty change and Hungary indicated that it does not want treaty change. That country on its own could block treaty change. Therefore, there is a very real prospect that treaty change will simply not take place.

There is concern with regard to enlargement. At this stage, there are states clamouring to get into the EU, such as Moldova, for example, because they are afraid of Russia, quite frankly. They want to join NATO and economically they want matters to be looked after by the EU. The problem is that if that kind of thing happens and another Hungary comes about, we need to deal with certain issues, such as the rule of law, for example. There are issues that need to be taken care of at a treaty level. I agree it may happen that we will not be able to do it. My worry is about a dysfunctional EU if that takes place. What might possibly happen is that other solutions will be sought. Those other solutions will be, I think, if I can call it such, the US constitution-style solution or the European Stability Mechanism, ESM, Treaty-style solution or the fiscal treaty solution. That is, international treaties being used with those treaties entering into force for a less than full complement of the member states, thereby enabling any member state that wants to vote against them to vote itself out but not veto the entire thing. That is my prediction but who knows. That would be it.

On co-operation on health and co-operation generally taking place on an intergovernmental basis as opposed to within the context of the EU, there are numerous advantages to doing it with the EU but I will point out two in particular. The first is there is more judicial control because of the European Court of Justice and a whole structure – I do not need to tell the Senator about the preliminary references, direct action and all that kind of thing whereby matters can be kept under control there. Second, there is more democratic control, including by virtue of the European Parliament. Europe did get by in relation to health matters the last time out. However, personally, I would prefer to see it ratified. I think it is better done on a supernational basis rather than an intergovernmental basis.

That is just my view on that. I am not sure whether I have dealt with all the issues.

Dr. Barry Colfer

I agree things are ticking along at the level of the EU but who will be in charge elsewhere, as the Senator said, will be important for all of us. I point towards the conclusion of my opening remarks when I spoke about the costs of non-enlargement. We could talk of "Ní neart go chur le chéile". The idea is enlargement is not just about costs. It is also about questions of security, arresting Chinese and Russian influence, and the EU's credibility on a global stage. To be objective, that is the sort of angle that could be taken by those who promote enlargement.

On French and German unanimity, the Senator is right and he took the words from my mouth that the paper is interesting but fairly light touch. There is a lot of disagreement between Paris and Berlin. One is a very liberal and the other a very social democratic government, although it is obviously a coalition in Berlin. However, there is definitely unanimity between Paris and Berlin on the importance of Paris and Berlin. I do not think that is going anywhere. I will say again that on the idea of being necessary or sufficient the Franco-German engine will continue. What we saw regarding the NextGenerationEU programme, for example, was a French and German cook-up in July 2020. Is that unfair to say?

Professor Gavin Barrett

No. It began there, as did the solutions to the sovereign debt crisis, which began with the speech in Doha.

Dr. Barry Colfer

I will make three other very quick points as I am conscious of time. On the ratification of treaty change and whether people are clamouring for treaty reform, for what it is worth, it is very rare to ever have citizens clamouring for legislative change. It is not typical. Sometimes it is very specific around matters of public policy, but what we are talking about today is still very useful. Notwithstanding how difficult ratification will be, it brings all the issues to the surface. That is great as regards the health and robustness of our democracies. It is to be revelled in and celebrated that we are thinking about how things might change.

To go back to what Deputy Haughey said, however, the prospect of ratification by the 27 of the future 36 is enormously challenging. This brings me back to my penultimate point that I made previously, which is also to agree with the Deputy, on a multi-speed Europe. We already have coalitions of the willing in the EU, to borrow a phrase, around matters, as I mentioned, such as the single currency, Schengen, and the various protocols whereby Ireland and other countries opt in and out of things. That will be with us forever. We should probably make more judicious use of it.

I will make a small remark on Le Pen. I lived in Italy until recently. There was similar concern about Giorgia Meloni coming to power with her Fratelli d'Italia party. A phrase associated with Irish politics in the past was that you campaign in poetry but govern in prose. It is to be hoped, and it is often the case, that getting into government is a sobering experience. Notwithstanding the background of that party, and the Rassemblement National is very extreme, if I can say that, it has drifted to the centre as is so often the case. If I can share a personal opinion, while I would certainly not welcome a Le Pen presidency, I would not be terribly worried about, for example, France maintaining its membership of the EU. When the rubber hits the road, as we saw with Georgia Meloni, people tend to drift back to the centre.

An Cathaoirleach

I will go back to Deputy Ó Murchú. He wanted to come in for a quick moment.

Deputy Ruairí Ó Murchú

It definitely will not be as long a moment as previously. Some of it relates to the rule-of-law issue, whether we are dealing with Hungary or a possible particular regime in France or anywhere else. Fiscal levers have been introduced. That is probably the ground there needs to be in maintaining what is an acceptable rule of law, while I understand we have to get some element of agreement regarding what warrants this.

The only other matter, which I think Dr. Colfer spoke about, was the movement from market to social. The one thing Covid probably showed, even to parties that would be more right wing than mine, was the idea that a public system is needed, particularly a public health system. As dangerous and difficult as it might be at times, interventionism even as regards climate change and the new European Green Deal and so on are all positives, if we can do it in such a way that benefits people as much as possible, and we try to bring them along the journey in other areas where there definitely will be a need for change. It will not always be easy. I agree with Senator McDowell on that. There are probably better ways of communicating, at which we can all fail.

An Cathaoirleach

The simultaneous joy and problem of being Chair is that by the time you get to make a contribution a lot of ground has been covered. I want to focus or express a view on certain areas and get the witnesses' thoughts on them.

We talked a lot about the Franco-German position and axis. I call a spade a spade in that regard because it all hangs off the following. The question of enlargement and the Franco-German position, and that of treaty change, are all totally integrated. What people do not say openly is that the EU, the EEC, the European Coal and Steel Community, and the Common Market comprised a club of a small collection of like-minded states put together in a particular way to serve a particular purpose. Somebody alluded to how Moldova would move much faster than Ukraine and, of course, it is much easier to deal with a situation that is not monetary at all, but the expansion and taking on board of Ukraine rocks the boat completely as regards the geopolitical balance within the EU. That is what no-one really wants to talk about.

The Franco-German position paper is totally unacceptable. It is absolutely and unequivocally unacceptable. I agree in large part with people who said it is not so much a German position paper as a restatement of President Macron's ideas that he likes to float about every two years, particularly his absurd Saturn's concentric rings idea that we will put the new and smaller member states floating around out there where they can do little or no damage. It boils down to the preservation of power as it currently exists within the Union. The Union has to face up to this. That is the real problem. If we are going to absorb the new countries into the EU, and we should for security reasons and European collective progress, we will have to face some way of doing that. We will have to face the reality that we cannot gerrymander the treaty changes so that power rests in the west and we are basically pumping money into the east of Europe. We will have to collectively share. If we are to do that, we need to put an incredible strengthening on the rule of law side of things. We have seen what a state the size of Hungary can do when it de facto goes rogue. If we were to look at a situation of an enlarged Europe in future, and a state the size of Ukraine was to go rogue at some point after we tried to rebuild and restructure it, it would create such difficulty for the Union.

We are at a real change point. Ordinary people across the EU do not engage on treaty change or issues. What happens when a situation arises where they are asked to vote on something that has a direct impact on their country's situation within the Union, or the reality of where their country will be financially within the Union, they do engage. One of the grave worries I have at this moment in time is that if we were to go to referendums, the risk is that existing Europe would say "No", far more so than Ireland. Ireland is a very interesting case. I stand to be corrected on this but, by and large, when we hold a referendum and are then accused of holding a second one to achieve a different result, usually the same number of people vote "No" in both referendums but a majority of extra people turn out to vote, which changes the overall complexity of a "Yes" to a "No".

Europe, by and large, does not use the referendum process. Enlargement will become one of the most controversial issues because of how it will affect the existing balance. We are at real risk, when referendums are held, of having a "No" situation. There is a need for creative thinking. Some of what is happening at the moment is looking to try to find various solutions, some of which have been referred to by our guests. There were some positive ideas from the Parliament. There has been the usual collection of ideas when it comes to the European Parliament in respect of trying to increase its own power, but there have also been some positive ones about how to develop structures that allow things to happen without unanimous voting. I would express caution, however - and this was a point made by Professor Barrett - if we try to move away from unanimous voting. On the foreign policy side, if we had majority voting and a majority of the European Union voted in a particular way on Israel and Hamas, there is no way Germany would accept the situation. What happens when a member state the size of Germany decides to walk out on the agreed EU position? On one level, it is easy to say we should move to majority voting as the solution. On another level, as flawed as it is, unanimity at least brings the heft of having Europe as close as possible to speaking with a single voice. For all the faults there are to that single voice, it might be better than a situation whereby we put in place structures which cause a collapse.

What I have taken from the discussion with our guests, and it is a point that members have picked up on, is that we need at some point to consider how we alter treaties to enable enlargement. We need to ensure that the process is not self-serving. If we do it, Europe will fail eventually. All we will do is to delay that failure. We must be clear that any system must be based on the concept of the original European Union, which is bringing us together as a single Europe, and not the proposals that are originating in some quarters and which seek to divide and conquer with the concentric ring idea. That would lead to the eventual destruction of the European Union as we know it today.

Dr. Barry Colfer

I will do my best to respond. The Cathaoirleach has expertly set out many of the challenges. I do not have answers for all of them but I have comments for three of them. In terms of the whole project kicking off in the 1950s as a group of like-minded countries, it is important to remember a couple of things. All of those countries' economies lay in ruins at the time. There were three overlapping reasons or impulses for the six countries to be driven together. One was the maintenance of peace. As we know, the Continent had kicked itself to pieces for 1,000 years and those countries were trying to set that aside. The second reason was to promote economic activity and raise the standard of living in Europe by creating good social and economic opportunities for people. The third consideration was to avert the threat of communism. There was a risk coming from the east. If we take those three fundamentals, Ukraine satisfies those tests. There is a need to maintain peace. Ukraine has a big economy with a global impact on food security, which is ever-increasing in its importance. There is also the idea of putting a bulwark between ourselves and Russia. I would say humbly that the Ukraine joining the EU fits into the original narrative of the bloc.

The Cathaoirleach has pointed towards probably the most important issue, which is that the values of the Union are fundamental. I have battled my way through most of the treaty at this stage but I always remind people that there are three things to read, which are the preamble and Articles 2 and 3. They set out the fundamental purpose of the bloc. It speaks to the fundamental values, the protection of minorities and the social market economy, as Deputy Ó Murchú said. As we move east, what is obvious is that there will be a tilting of interests. The values remain the same and cannot change but the interests will change. There is obviously a reckoning coming in that regard. It has already happened since 2004. The emphasis and what is important in Croatia, Estonia and Romania is different from what is important in Ireland. It is important to point out, as difficult as it is to say at this juncture, that Ukrainian democracy has its flaws, that much is clear, but so do many other of the potential new EU member states. The whole idea of concentric circles, including the likes of the UK and Türkiye, is going to gain prominence in the discourse.

I said that the ideas of values and interests are probably the most difficult pieces of the puzzle. Perhaps the biggest risk, as the Cathaoirleach pointed towards, relates to the raising of expectations and the Europe ultimately saying "No". We just have to look at the example of Northern Macedonia, which jumped through many hoops. It is a good democracy with many pro-European voices within it. Still it has been kept in the waiting room. Imagine, in Ireland, going to the public and telling them we are going to change the name of the country so that something happens, and then it does not happen. That is a harbinger for what may be to come.

An Cathaoirleach

A representative of the Government of North Macedonia made that point only a few weeks ago while sitting in the chair Dr. Colfer is sitting in now.

Dr. Barry Colfer

Is that right? I am with those lads, obviously. The idea of raising the expectations of these countries on our borders, friends of Europe, and then ultimately reneging on the promise will risk driving these countries into the arms of other competing geopolitical actors, whether Russia, China or others. We would reap a whirlwind. It is important to think about the risk of raising expectations and ultimately pulling it all down ourselves. That is a good point, well made.

Professor Gavin Barrett

Deputy Ó Murchú raised a particular issue and I am struck by how linked all of these issues are. He raised the issue of conditionality and suggested perhaps that is the solution to the rule-of-law issue. Almost every other means had been used, including a system of reports, Article 7 and Commission prosecutions of states such as Hungary and Poland. Some of those means were not used to an adequate extent but they were used. People felt that the financial conditionality, such that countries only get money if they behave themselves on the rule-of-law issue, might work. The problem there is that Hungary is now using its veto on a different issue. That then raises the issue of whether we can do anything about the veto it is using. Those issues are all linked. That is the problem and it is why these issues are arising.

I spent yesterday listening to the divisiveness of the views of countries excluded from Schengen that want to be in Schengen. We are slightly different. We do not want to be in it because of our other situation with UK. For member states that have fulfilled every single monetary requirement and every single security requirement, to see existing member states blackball their membership of Schengen is as divisive an issue as I have seen in a long while at European level, where normally people work for cohesiveness. If that is what we can get out of the Schengen argument, imagine taking it into areas that are far more contentious. I would caution the idea that we can do this because we are doing with Schengen and that is some solution. Based on what I saw yesterday, it is far from solution for a lot of member states.

Professor Gavin Barrett

The point is taken but I would raise one other point. If the change does not come about in the European Union, although it is not a question of us blocking it, that makes the European Union fit for purpose in the future, we are inevitably going to get the kind of change the Cathaoirleach is talking about because certain member states will simply move ahead using non-European Union treaties to enhance that co-operation.

An Cathaoirleach

That is the balance. I would agree with Professor Barrett on that. I call Senator Chambers.

Senator Lisa Chambers

I had logged in online and then I was in the Chamber so I heard the opening contributions. I thank the witnesses for being here. A lot has already been covered by my colleagues. I might just touch on a couple of matters raised by the witnesses. I will go to Dr. Colfer first. He spoke about the inevitable future tilt to the east. What would he see as the things that might concern Irish people most? What would we be looking at in terms of cultural differences, differences of opinion on the rule of law or how the Union should work? I will preface this by saying that I am actually quite excited about enlargement. I think it is a really positive thing. We cannot stand still. We have to keep moving forward and for all those reasons, such as China and Russia and the different geopolitical situations, we have no choice but to move forward and to enlarge. It should be viewed in a positive way but I would just be interested to hear about what might crop up with that tilt to the east.

I also acknowledge what Dr. Colfer said about needing to talk more domestically about the costs of non-enlargement. That is a good piece of advice to us as public representatives because we will be engaged in those debates and we need to talk about the fact that it is not without cost if we do not move forward. There are risks there as well.

Professor Barrett mentioned the EU's inadequacies around foreign defence and energy policy, which were highlighted by the war in Ukraine. Would he please elaborate a little more on what those inadequacies are? He also said that enlargement is coming and that requires preparation. Would he have any advice for us on what preparation would look like in an Irish context? What should we be doing domestically now to prepare for that? He also said that the budgetary implications of enlargement need to be agreed by 2027. Is that realistic? Does he think we will achieve that?

My final question is for all the witnesses. I do not believe it has been discussed. It is about the proposed changes to defence at an EU level and the defence union. That is a topic that seems to provoke a very strong response from different quarters in our country. The Tánaiste recently held the consultative form on defence at three different locations, with dates in Cork and Galway and two in Dublin. I attended the event in Galway. I would have a particular interest in that area anyway, having been in the Reserve Defence Force for a number of years and been my party's defence spokesperson. I think there has been a mood change. Maybe I am naïve to think this but I think there has been a slight mood change in the country, particularly after the cyberattack on the HSE. The war in Ukraine has also brought war much closer. It is in Europe. It is not in the EU but it is on our borders. The Commission is very keen to stress that there will be no implications for the neutral status of any particular country. What do the witnesses see happening in the next five years with regard to the development of that defence union? What might be required of Ireland engaging in that? We have no choice but to engage in that process. I do think the Irish public are more open to those conversations now because we have had real domestic examples of where our defence situation is not adequate.

Professor Gavin Barrett

On foreign defence and energy policy, I have a feeling Dr. Colfer probably has more to say about that than I do. The issue I would see with foreign policy at the moment is that unanimity is everywhere. I am not sure that is tenable in a Union of 27 member states. There are always sensitive veto points. As the Senator pointed out, Ireland is a neutral country so we have a very particular perspective on defence ourselves. The overwhelming prevalence of unanimity is something that needs to be looked at. Although a lot of the decisions are executive decisions, at the same time there is an almost complete exclusion of the European Court of Justice and there is an exclusion of parliamentary scrutiny as well. Those are particular issues. There are other things, such as particular structures that do not seem to have worked all that well, like battle groups for instance.

Senator Lisa Chambers

It is an unfortunate name.

Professor Gavin Barrett

Exactly. It is an unfortunate name and they are not really working that well in practice either, as far as I can see. The resources the European Union has available in order to intervene in crisis situations do not seem to be very adequate. Maybe that is something that will be looked at in the future.

The Senator also raised the issue of preparing for enlargement. What can be done by the Oireachtas is to alert those who need to be aware of this kind of thing what is going on, what is coming down the tracks towards them and discuss these issues with them, and with the farmers in particular because we are talking about major changes to cohesion funds and CAP funds. There is no doubt about that. There was an element of "Wake up, everybody" in the Commission paper that was leaked. That is about existing budgetary provisions and it relates to nine member states joining. Nine member states are not going to join in the immediate future and they are not going to maintain the existing budgetary provisions but there will be some changes and we need to be ready for that.

We need to be thinking about it, have arguments and ideas about where the changes should come about, and consult the relevant parties, particularly the farmers but not just them. As to whether it is realistic to expect these budgetary changes to take place, I believe, without being glib about it, that it is a matter of the old Sherlock Holmes statement that if you eliminate the impossible, whatever else remains, no matter how improbable, must be true. In other words, Europe has to cope with this and will have to reach an agreement. In fairness, Europe has a pretty good record despite all the stick it takes. Ultimately, when its back is to the wall and it must come up with a solution, it actually does. Next Generation EU is an example of this. It will not be easy and I can imagine there will be negotiations until the eleventh hour and a lot later. Ultimately, however, some kind of agreement will be reached because it has to be if Europe wants to enlarge. The two aspects go together in that you cannot have enlargement without paying the cost.

Ireland’s position on defence and security policy was mentioned. Ireland seems to be doing the right thing. The position, which seems to be very much supported by the public, is to maintain neutrality, but that has not stopped Ireland from participating in cyber defence, which we desperately need, as we have seen. Where our position on military neutrality is not jeopardised, we take a very activist position on many things, and that is to be applauded. We can certainly continue in that respect.

Dr. Barry Colfer

I thank the Senator. It is good to see her again.

On the tilt to the east, I know a bit of eastern Europe very well but do not speak for all of it as it is a very differentiated place. However, let me point to three areas that I expect will become more obvious: social mores, economic imperatives and geography.

On social mores, in eastern Europe there is very often a different relationship with the state than there is here. Some of our fundamental values, including those related to the rights of minorities, are perceived differently. Needless to say – I do not know how to be any less diplomatic – this will intrude on the discussion on eastern enlargement, just as it already does in respect of some of our central and eastern European members.

On the second area, economic imperatives, the most obvious point for me, which I am amazed has not arisen more in the discussion, relates to the Common Agricultural Policy and the future of agriculture. I have already mentioned in passing a paper that Pat Cox produced for the Institute of International and European Affairs, IIEA, on the prospect of Ukrainian accession. It refers to Ukraine having a big agricultural sector and to its being poor. I would be happy to share that paper with members. The impact on the EU’s budget of eastern enlargement, particularly regarding agricultural activity and subsidies to farmers, will be central to any discussions.

On the third area – geography – geography cannot be directly equated with security, but it is partly the case that it can. In this regard, we should bear in mind the regions further to the east. We are basically talking about the Middle East, including Türkiye, and Russia, places that will now be on the EU’s frontier. This brings with it a range of public policy questions that will be perceived differently in eastern Europe than here for reasons of proximity.

On the costs of non-enlargement, I am thankful for the remarks. If I were to have an argument on this, it would boil down to three areas: security; influence or size; and our competitors and rivals. These overlap. It is in the interest of citizens of the European Union, including Ireland, to ensure the bloc we are in is secure and safe. Having a border farther from Ireland plays into that. So, too, does the idea of doing our best not to drive non-EU members into the arms of our competitors or rivals. In this regard, I have mentioned China and Russia, but there are also countries like Iran. The obvious geopolitical case for enlargement is that it is better to have countries in than out, so to speak.

It is remarkable that defence was not raised more. For what it is worth, I agree on the mood change and the very effective consultation forum, which I had the pleasure of attending. Whether these have shifted the debate, time will tell. This week, we are publishing a glossary of terms on security and defence to assist with the public discussion at the IIEA on Ireland’s security and defence posture.

I will make three points to conclude on the matter. There is much interest overseas among our peer think tanks. We are in networks all over the world and we all ask each other questions about our home places. There is genuine interest at present on where Ireland stands on neutrality. While Ireland’s capability in the security and defence space has been well documented as fairly limited, it is changing with the well-documented commission on the future of the Defence Forces. However, that is not really what people are taking an interest in. It is not about Ireland’s capability to contribute to any form of collective European defence, even a nominal one, but about our capacity to defend ourselves and, in so doing, the rest of the EU. Professor Barrett hinted at this. We are not just talking about boats and typical military capacity but also about mathematicians and, obviously, soldiers. Some months ago, I was in a different committee room talking about our well-exposed vulnerabilities related to our subsea cables – another matter the institute has worked on. The debate on Ireland’s security and defence in the EU context will increasingly concern matters of cyber security and the capacity of Ireland to defend itself and the rest of the EU, having regard to our connection to the Internet.

The proposals from the European Parliament, which I meditated on at the start of our meeting, make specific indirect reference to Ireland, Austria and one or two other places, stating that what the European Parliament spoke about in respect of a defence union, a dedicated budget for joint procurement financed by the EU, and various other matters will all be achieved “with regard to national traditions of neutrality”, which would not be affected by the changes. Whatever changes the European Parliament is proposing still account for the now increasingly small number of neutral countries in the bloc.

Senator Lisa Chambers

If treaty change is required, an impact on neutrality would probably be a red line for countries like Ireland. It is interesting to hear there is much interest in our position, because I believe we have had a very flexible approach to neutrality and have stretched it as much as possible. We have been very clear that we are not neutral on the war in Ukraine. We are very much on the side of Ukrainians and their right to defend themselves as members of a sovereign nation. We have been very strong on that.

Dr. Colfer made the important point, also made by the Tánaiste, that while Ireland is not and never will be a military superpower, this not being within our capacity, it is important that we do our bit given our size. Considering that we have so many major multinationals headquartered here and the matter of the transatlantic cable, Ireland is now regarded as a weak point in terms of European defence. That is a problem for Europe and therefore a problem for us. The debate is moving. We have come a long way from the debate on the Lisbon treaty and the scaremongering that happened in that regard. If there is a new referendum, we will at least be able to point to the fact that what was referred to previously never came to pass. We will be able to say that what was said would happen did not happen. This will help us in future debates. It is going to be an interesting topic for us.

An Cathaoirleach

It is worth noting that the language of the European Parliament that Dr. Colfer just quoted came specifically from Ireland. At the meeting we attended, those exact words comprised the Irish proposal in a discussion that otherwise did not recognise neutrality. Only when we proposed the wording was it included in the draft. It is very interesting that the member states participating at a session like the one I have mentioned do not account for the neutrality of small countries. They think in terms of European defence and move in a particular way. A clear statement is required at all times by Ireland, in conjunction with the small and diminishing number of neutral states, to the effect that nothing will be adopted that does not take into account the position of neutral states. The inclusion of the wording is requested by Ireland every time.

For clarity, we are not politically neutral on Ukraine. As has been said by the Taoiseach and the Tánaiste on a number of occasions, we are militarily neutral but politically, we are clearly not neutral when it comes to Ukraine. With that, we will conclude our meeting today. I thank everyone very much for coming in. It has been a very helpful and informative exchange of views.

The joint committee adjourned at 12.10 p.m. until 10 a.m. on Wednesday, 22 November 2023.

Joint Committee on European Union Affairs díospóireacht - Wednesday, 15 Nov 2023

Future Treaty Change in the European Union: Discussion

Dr. Barry Colfer

Professor Gavin Barrett

Professor Gavin Barrett

Professor Gavin Barrett

Professor Gavin Barrett

Professor Gavin Barrett

Professor Gavin Barrett

Dr. Barry Colfer

Dr. Barry Colfer

Dr. Barry Colfer

Mr. Dylan Marshall

Dr. Barry Colfer

Professor Gavin Barrett

Professor Gavin Barrett

Professor Gavin Barrett

Professor Gavin Barrett

Dr. Barry Colfer

Professor Gavin Barrett

Professor Gavin Barrett

Professor Gavin Barrett

Dr. Barry Colfer

Professor Gavin Barrett

Dr. Barry Colfer

Dr. Barry Colfer

Dr. Barry Colfer

Professor Gavin Barrett

Professor Gavin Barrett

Professor Gavin Barrett

Professor Gavin Barrett

Professor Gavin Barrett

Professor Gavin Barrett

Dr. Barry Colfer

Joint Committee on European Union Affairs díospóireacht -
Wednesday, 15 Nov 2023