It is an honour to introduce this Bill, the purpose of which is to amend the European Communities Act 1972 to give effect to the relevant provisions of the Lisbon treaty in the domestic law of the State and to provide for related matters. The provisions necessary to enable the State to meet its obligations under the treaty must be enacted into domestic law before the treaty enters into force.
As the House knows, the people of Ireland voted by a majority of 67.1% on a turnout of 59% on Friday, 2 October, to approve the proposal to amend the Constitution in the Twenty-Eighth Amendment of the Constitution (Treaty of Lisbon) Bill 2009. That Bill has now been enacted having been signed into law by the President on Thursday, 15 October. On Thursday, 8 October, Dáil Éireann approved the terms of the Treaty of Lisbon in accordance with the terms of Article 29.5.2° of the Constitution and on Friday, 16 October, the President signed the instrument of ratification. The ratification process will be complete when the instrument of ratification is deposited with the Italian Government in accordance with Article 6 of the treaty. I will do that tomorrow. By lodging the instrument of ratification we will have met all our obligations in time for Thursday's European Council meeting.
At the European Council in December 2008, the Government committed itself "to seeking ratification of the Treaty of Lisbon by the end of the term of the current [European] Commission". The Commission's mandate expires at the end of this month. The treaty will enter into force on the first day of the month following which all member states have lodged their instruments of ratification with the Italian Government. A total of 25 of the 27 member states have already completed the ratification process. Two countries are outstanding: Ireland and the Czech Republic. We will complete our part of the ratification tomorrow. If all instruments are lodged by the end of this month, the treaty will enter into force on 1 November.
When the treaty comes into force, the legally binding guarantees secured by the Government in June on taxation, the protection of the right to life, the family and education and Ireland's traditional policy of military neutrality will also enter into force. The legally binding guarantees are in the form of a decision of the Heads of State or Government of the 27 member states of the European Union, meeting within the European Council. This decision will have the status of an international agreement. The decision, the Solemn Declaration on Workers' Rights, Social Policy and Other Issues and the national declaration by Ireland on security policy have been annexed to the instrument of ratification which will be deposited with the Italian Government. In addition, the legally binding decision will be registered with the United Nations when the treaty enters into force.
The European Council also agreed in June that the decision, that is, the legally binding guarantees on taxation, the protection of the right to life, the family and education and our traditional policy of military neutrality, will be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union as a protocol at the time of the next accession treaty. It is to be hoped that will be quite soon. Protocols form an integral part of the treaties and, in legal terms, have treaty status.
On Friday, 2 October, the Irish people issued an emphatic confirmation of Ireland's European vocation. A total of 1,214,268 citizens voted in favour of the Lisbon treaty. No other European treaty has ever received as many votes in its favour in an Irish referendum. In fact, yesterday, for the debate in the Dáil, I looked at the data on referenda over the years. It was fascinating to see the number of referenda that had been passed by significantly lower turnouts and significantly lower "Yes" votes. The referendum result has given new momentum to Ireland's economic recovery and it will infuse the Union with renewed confidence in our ability to continue delivering for our citizens. Not only was it a positive development from Ireland's point of view, it was fascinating in the days following the referendum to speak to colleagues across the European Union and to see how it energised Europe.
The people of Ireland made a democratic decision on the Lisbon treaty. After a hard fought referendum campaign with real engagement on all sides and in which its merits were thoroughly debated, they decided overwhelmingly to approve the treaty. The fact that such an emphatic "Yes" vote was delivered underlines the commitment of the people to the European Union and also the determination of the Government and the main Opposition parties to maintain Ireland's position as a positive and constructive member state at the heart of the Union. The legally binding guarantees secured by the Government in June that addressed the Irish people's concerns on taxation, ethical questions and our traditional policy of military neutrality, taken together with the new commitment on the Commissioner and the Solemn Declaration on Workers' Rights, Social Policy and Other Issues, were, I believe, crucial to the outcome in the referendum. They changed the context of the debate.
The European Union delivered for Ireland in June and the people endorsed the new package. The Union works best when it listens and accommodates the concerns of individual member states. I am grateful to our European colleagues for their positive and constructive response to the Irish people's concerns.
One of the points in the debate that aggrieved me was the suggestion the European Union operated as a bully. Nothing could be further from the truth. We have reason to be grateful to our European colleagues for their positive and constructive response to Ireland's decision and concerns in the first referendum. They listened and were willing to take on board our concerns. They were willing to make the necessary arrangements to deal with them.
The Government worked hard to explain the Lisbon treaty, as did the main Opposition parties, civil society and a variety of groups across society. The referendum success was the result of a real collective effort. In the Lower House yesterday I stated that if we could do this more often, finding issues that take us beyond partisan politics and working together, we could do great things. I am grateful to Members on all sides of this House, trade unions, employers, farming organisations and the various civil society organisations which came together to ensure a positive engagement with the citizens in order that the treaty would be ratified.
It would be remiss of me not to mention the work of the Sub-Committee on Ireland's Future in the European Union under the able chairmanship of Senator Donohoe. The work of the sub-committee and its recommendations were key elements in the strategy that brought us to the fortunate position we are in today. On several occasions I have expressed my personal admiration for the work of Senator Donohoe and all members of the sub-committee. It is a good example of something very positive that can be done in this House. The Lisbon treaty will bring clarity to the direction and workings of the European Union and should help to address the democratic deficit that concerns many. It was concern about the democratic deficit that motivated Mr. Joschka Fischer all those years ago in Humboldt University to argue that there was a need for a new treaty based on the desire to create a more democratic space in Europe. This is what the treaty does.
It is worth recalling the provisions of the Lisbon treaty. The foundations of the European Union stretch back to the European Coal and Steel Community, established almost 60 years ago. Ireland joined the process in 1973. The Union is made up of 27 member states and operates on the basis of an agreed set of rules, the European Union treaties. These are its basic legal documents. Changes to these treaties have been agreed by the member states from time to time to update them to meet Europe's changing needs. The Lisbon treaty is the latest proposed update of the Union's operating rules. It was signed by the Heads of State and Government of the European Union in Jerónimo's monastery in Lisbon on 13 December 2007. I always recall that it was a Friday and I said to people that I hoped we were not doing the wrong thing by signing the treaty on the 13th.
The Lisbon treaty sets out the nature of the European Union, its objectives and values. It states the Union's aims are to promote peace and the well-being of its peoples. We lost sight of this in the debate in Ireland. People talk about militarising Europe but it is hard to think in these terms because the Union is dedicated to peace, human rights, democracy and the rule of law. Its values are our values as a nation and as a people. The treaty states the Union can act only within the limits of the competences given to it by the member states. The Irish people can take some quiet satisfaction from the fact that the conferral principle is so clearly spelled out in the treaty. It is one of the issues to which we sought a change in the Convention on the Future of Europe.
The Lisbon treaty proposes some changes to the operation of the European Union's institutions. These include the European Parliament, the body directly elected by citizens that will become more intimately involved in making laws for the Union; the Council of Ministers, made up of the representatives of member state governments, and the European Commission, a body with one person from each member state, which proposes draft European Union laws. This is the guardian of the treaties. The treaty also gives formal institutional status to the European Council which brings together the Heads of State and Government of the member states.
The Lisbon treaty simplifies the European Union's structures and operation. It proposes new competences for the Union in areas such as energy, tourism, sport and humanitarian assistance. These are not major changes in competences but are welcome, particularly that relating to energy. The treaty also proposes to make the Charter of Fundamental Rights part of European Union law. The charter sets out the fundamental rights, including workers' rights, of European citizens. It is one of the best documents produced in Europe. It is an uplifting document that celebrates the rights to which we all aspire and advocate within the Union. It will oblige the Union, when implementing its policies and activities, to take into account the promotion of a high level of employment and the guarantee of adequate social protection. It will give a new role to national parliaments, including Dáil Éireann and Seanad Éireann, in the European law-making process. One of the reasons we had to hold a referendum was that the treaty gave remarkable new powers to both Houses, particularly this House, that the Houses do not enjoy under Bunreacht na hÉireann.
The Lisbon treaty will give more responsibility to the directly elected European Parliament. In this Chamber I recall the former President of the European Parliament saying that when he was elected in 1979, he could not have envisaged the Parliament witnessing such an expansion of its democratic role, as achieved by the Lisbon treaty. The treaty will streamline the voting system under which some future European Union decisions will be taken and make European Union decision making easier in the fight against cross-border crime.
The Lisbon treaty will make specific provision, for the first time in the treaties, for European Union action to combat climate change, one of today's major global challenges. It will give the Union greater capacity to prevent and resolve conflicts in other parts of the world by providing for the appointment of a full-time President of the European Council and a new High Representative for Foreign Affairs and Security Policy, whose responsibility will be to give the Union a clearer voice in international affairs. Members will recall Henry Kissinger's famous question of who he should ring in Europe. He would now have a face, a name and a phone number.
When the people voted at the beginning of the month, they affirmed Ireland's commitment to the European Union within which the member states work together to promote peace, shared values and the well-being of their peoples. I am particularly interested in that phrase because it is at the top of the decision that the people made and a commitment to the Union based on that principle. The Lisbon treaty is the culmination of a process that began nearly ten years ago when the Heads of State and Government of the 27 member states declared that the Union needed to come closer to its citizens and become more responsive to their needs and expectations.
The European Union Bill 2009 will give effect to the relevant provisions of the Lisbon treaty in Irish law and, in so doing, will ensure the Union can work with the member states to promote the well-being of the peoples and respond to their needs and expectations. The Bill is necessary to amend the European Communities Act 1972 to give effect to the relevant provisions of the treaty in the domestic law of the State and provide for related matters. The content of the Bill is in line with earlier amendments of the European Communities Act 1972 through which provisions of previous European Union treaties have been given domestic legal effect.
The Bill also takes account of the fact that the Lisbon treaty confers explicit legal personality on the European Union and makes certain institutional and terminological changes. The Bill provides for the conferral of the new powers on the Houses of the Oireachtas under the terms of the treaty I mentioned. In addition, it provides for the continuation in domestic law of certain statutory instruments giving effect to European Union directives, regulations or decisions.
The Bill is relatively short, containing only nine sections, most of which are technical in nature. Section 1 provides that the "Act of 1972" means the European Communities Act 1972, that "European Union" and "treaties governing the European Union" have the same meaning as they have in the 1972 Act and that "Minister" means the Minister for Foreign Affairs.
Section 2 inserts into section 1 of the 1972 Act definitions of "European Union", as established by the Lisbon treaty and the European Atomic Energy Community, "Lisbon treaty" and "treaties governing the European Union", that is, the Treaty on European Union, the Treaty on the Functioning of the European Union, the Lisbon treaty and the treaties currently governing the European Communities, excluding provisions of the European Union's Common Foreign and Security Policy in respect of which the Court of Justice of the European Union will not have jurisdiction. This just goes to prove that it is not only in Brussels that long and complex sentences are written. We have this capacity here as well.
Section 3 amends section 2 of the Act of 1972 which sets out the European Union legal instruments that are binding on the State and part of domestic law. It provides that once the Lisbon treaty enters into force the treaties governing the European Union, the acts of the institutions of the European Communities in force prior to the entry into force of the Lisbon treaty, the acts of the institutions of the European Union and acts of bodies competent under the treaties shall be binding on the State and part of domestic law, with the exception of the non-justiciable acts adopted under the provisions relating to the European Union's Common Foreign and Security Policy, CFSP, in respect of which the Court of Justice of the European Union will not have jurisdiction.
As I indicated, under the current treaties there are three broad areas or so-called pillars of European Union activity. The first area broadly covers economic and social policy, the second relates to the CFSP, and the third covers justice and home affairs. The Lisbon treaty provides for a European Union with explicit legal personality that will replace the European Community established by the Treaty of Rome and the old Union established by the Treaty of Maastricht. Since the Treaty of Maastricht, the situation in Ireland has been that only those elements that relate to the European Communities or were otherwise justiciable before the European Court of Justice, ECJ, should form part of the domestic law of the State. The intergovernmental second and third pillars were therefore excluded.
The confusing distinctions between the European Communities and the European Union are to be abolished by the Lisbon treaty. The three pillars will be merged, but special arrangements will continue to apply in the case of the CFSP. There will be limited involvement by the European Parliament, the European Commission and the ECJ in this area. Thus, in line with our existing practice, the provisions of the Lisbon treaty in this area are not being brought by the Bill into domestic law except where the ECJ will have power with regard to persons, bodies or companies that are subject to European Union sanctions or in respect of the boundary between the CFSP and other areas of Union competence.
Since the Lisbon treaty provides for a European Union with explicit legal personality which will replace the current European Community, section 3 provides that acts of the current Communities shall be carried over and remain valid in the new arrangements. The European Atomic Energy Community, EURATOM, is legally distinct from the current European Community and European Union, though they are served by common institutions. EURATOM will survive the entry into force of the Lisbon treaty and it comes within the definition in section 3 of treaties which will be binding on the State and part of Irish law when the Lisbon treaty enters into force.
I might mention here that Ireland, together with Germany, Austria, Hungary and Sweden, made a declaration annexed to the final act of the 2007 Intergovernmental Conference noting that the core provisions of the EURATOM Treaty have not been substantially amended since its entry into force and need to be brought up to date. The Government still favours an extensive review of the EURATOM Treaty, leading to a significant updating of its provisions. I am not sure whether Members of the House have had an opportunity to peruse the contents of the EURATOM Treaty but if they do so they will see that many of its provisions have not stood well the test of time. They are archaic.
Section 4 amends section 3 of the Act of 1972 by updating the references to treaties and acts of the European Union for which it is permissible in implementing regulations to provide for indictable offences. There is no substantive change in this area. Members of the other House had concerns about this but there is no substantive change.
Sections 5(1) and 5(2) provide that references in enactments other than the Bill and the Act of 1972 to the European Communities shall be construed as including references to the European Union and such references to the treaties governing the European Communities shall be construed as references to the treaties governing the European Union.
Section 5(3) provides that references in any enactment to the Treaty establishing the European Economic Community or the Treaty establishing the European Community shall be construed as references to the Treaty on the Functioning of the European Union. This takes account of a provision in the Lisbon treaty to the effect that the Treaty of Rome, which is currently formally called the Treaty establishing the European Community and prior to Maastricht was called the Treaty establishing the European Economic Community, will henceforth be called the Treaty on the Functioning of the European Union. It also provides in section 5(4) that "enactment" shall include a statutory instrument.
Section 6 amends section 1 of the European Union (Scrutiny) Act 2002 by updating the definition of "measure" to take account of terminological changes consequent on the entry into force of the Lisbon treaty. The change in title of the Treaty of Rome has been reflected in paragraph (a). Paragraph (b) reflects the fact that the different types of legal instruments used in the existing second pillar - joint actions and common positions — are replaced by a legal act used across all areas of the Union’s activities, namely, decisions. Accordingly, a “joint action adopted under Article 14 of the Treaty on European Union” and a “common position adopted under Article 15 of the Treaty on European Union” will become a “decision adopted under Article 28 or 29 of the Treaty on European Union”. This is necessarily complex because it is taking differences in terminology which have caused comment over the years and giving them the same title.
Paragraph (c) reflects the fact that the constitutional amendment facilitating the ratification of the Lisbon treaty has simplified and updated the provisions of the Constitution relating to our membership of the Union by replacing the current wording in the 2002 Act referring to a measure requiring the prior approval of both Houses of the Oireachtas pursuant to Article 29.4.6° and 29.4.8° of the Constitution with wording referring to an act requiring prior approval of both Houses of the Oireachtas pursuant to Article 29.4.7° or Article 29.4.8° of the Constitution. These are the provisions in the Constitution which require the prior approval of both Houses to be obtained before the State can participate in certain European Union measures, including acts adopted under the areas of freedom, security and justice.
Section 7(1) provides for the operation of the new powers for the Houses of the Oireachtas under the terms of the treaty. These powers will allow either of the Houses, by means of a resolution, to object to a proposal to move from unanimity to qualified majority voting in the Council of Ministers or to move from a special legislative procedure to the ordinary legislative procedure provided for under Article 48.7 of the Treaty on European Union as amended by the Lisbon treaty, the so-called general passerelle or bridging clauses which were subject to so much misleading comment in the past 18 months in this country. People had a genuine concern about this and while I should not state this concern was baseless as people's concerns come from all types of motivation, the reality is that people can be confident that the Houses of the Oireachtas and their sister parliaments throughout the Union will play a much more active and focused role than was ever the case.
The ordinary legislative procedure involves an equal decision-making role for the Council of Ministers and the European Parliament in the adoption of regulations, directives and decisions. It requires the Council to operate by qualified majority and the Parliament by a simple majority of those voting. However, if unanimity is required in the Council or the Parliament has a lesser role in the decision-making process, this is known as a special legislative procedure.
Section 7(1) is complementary to the provisions of the new Article 29.4.8° of the Constitution which requires the prior approval of the Houses of the Oireachtas before the State —de facto the Taoiseach operating in the European Council — can agree to any change under Article 48.7 of the Treaty on European Union.
Section 7(2) provides a similar power with respect to a proposal to move to the ordinary legislative procedure family law matters with cross-border implications under Article 81.3 of the Treaty on the Functioning of the European Union. The prior approval of the Houses of the Oireachtas is required in this area under Article 29.4.8° of the Constitution. In addition, as this is a matter which falls within the area of freedom, security and justice, the prior approval of both Houses of the Oireachtas would also be required under the new Article 29.4.7° of the Constitution in accordance with Ireland's opt-in arrangement under Protocol No. 21 to the treaties. The veto mechanism provided for in sections 7(1) and 7(2) is known colloquially as the "red card".
Article 6 of Protocol No. 2 to the treaties on the application of the principles of subsidiarity and proportionality provides that, if at least one third of national parliaments in the European Union issue reasoned opinions on a draft legislative act's non-compliance with the principle of subsidiarity, then the draft must be reviewed. That is an extraordinary move forward from the point of view of giving powers to parliaments. The threshold is a quarter in the case of draft legislative acts submitted in the area of freedom, security and justice. The institution proposing the legislative act, normally the Commission, may decide to maintain, amend or withdraw the act and must give reasons for its decision. This mechanism is known as the "yellow card".
If the draft legislative act is made under the ordinary legislative procedure and if a simple majority of national parliaments issue reasoned opinions on non-compliance with the principle of subsidiarity, the Commission must justify any decision to maintain the proposal in a reasoned opinion submitted to the Council and the European Parliament. This procedure is known as the "orange card".
The principle of subsidiarity means that, in areas where the member states and the European Union share a competence, action may only be taken at Union level where this is deemed likely to be more effective than action taken at national or regional level. We are very familiar with the subsidiarity principle which has been part of political debate for many years. The emphasis on the principle in the Lisbon treaty is very welcome. That, together with conferral and proportionality, were not sufficiently discussed here but they dismiss any proposition about creeping federalism or Europe becoming a super state. None of those fears can ever be realised.
The mechanism for the exercise of the "yellow card" and the "orange card" is the same and this is provided for in section 7(3). The section provides that either House may issue a reasoned opinion on whether European Union legislative proposals comply with the principles of subsidiarity in accordance with Article 6 of Protocol No. 2. The consequence, however, of an orange card, rather than a yellow card, is more stringent. If the Commission wishes to proceed with its proposal the European Parliament and the Council of Ministers are obliged to consider the opinions of the national parliaments and the Commission's justification before deciding to proceed with, or terminate, consideration of the proposal.
Section 7(4) covers Acts, rather than draft legislative Acts, of an institution of the European Union. It provides that, if either of the Houses of the Oireachtas gives a reasoned opinion to the Minister for Foreign Affairs that an Act of the European Union institutions infringes the principle of subsidiarity, the Minister shall arrange for proceedings seeking a review of the Act concerned to be brought in the Court of Justice of the European Union in accordance with Article 8 of Protocol No. 2.
Section 7 will form the basis for a new role for the Houses of the Oireachtas in the European law-making process. It will be a welcome addition to the role that our Parliament plays in European affairs. This new role is proof, if we need it, that the Lisbon treaty will make the Union more, not less, democratic.
It is not proposed to make provision in this Bill for broader questions such as Oireachtas scrutiny of draft European Union legislation or the transposition of directives. The Government is of the view that it would not be possible to deal with these issues adequately within the tight timeframe available, but we accept that these issues will need to be dealt with at a later stage when we have had time to have a proper consultation process.
Section 8 deals with the implementation in Irish law of European Union codification directives. European Union codification directives are a relatively new phenomenon. Such directives repeal pre-existing directives in a particular subject matter and consolidate them, with a view to making the European Union legal system more transparent and easier to understand. It mirrors steps being taken at domestic level to consolidate the Statute Book.
The section provides that statutory instruments giving effect in domestic law to Acts of the European Union institutions, which have been repealed and replaced by codifying Acts of such institutions that do not materially modify the rights or obligations conferred by the repealed Acts, shall have effect as if they had been made for the purpose of giving effect to the codifying Acts concerned. The provision is confined to European Union codification directives which do not change existing law. The net effect of this is that there will not be any creeping extension of legislation in the Act of codification.
The Government is committed to mirroring at domestic level the simplification being carried out by the European Union and therefore Departments will, as a matter of policy, be expected to prepare codifying statutory instruments to ensure transparency. The provision in the Bill is a technical one that will avoid the possibility of opening any lacunae in enforcement of our European Union obligations pending the making of such statutory instruments.
The effect of section 9 is that section 8 on European Union codification directives will come into force on the enactment of this Bill but the rest of the provisions will not come into force until I sign a commencement order, which the Minister will do as soon as the date of entry into force of the treaty becomes clear. It would be improper to sign this before we know that the treaty is coming into effect. The Bill must come into effect on the same date as the treaty enters into force. As the Minister said elsewhere this could be as early as next week.
These are the provisions of the Bill. I apologise that the explanation has been rather complex. There are some complex elements in the Bill. Now that the entry into force of the treaty is within sight, I would like to indicate to the House some of the next steps the Government proposes as we move towards implementation. In his statement on the outcome of the referendum the Taoiseach said:
The European Union is shaped by its peoples and nations to serve its peoples and nations. Today's vote is a declaration of intent by the people of Ireland to remain at the heart of Europe, where our future belongs.
With that in mind, the Government is committed to pushing for the early adoption at European Union level of the procedures and conditions necessary for the citizens' initiative provided for by the treaty and the Government will take any steps at domestic level that might be necessary on foot of this. Under the new citizens' initiative, at least 1 million citizens who are nationals of a "significant number of Member States" will be able to invite the Commission to submit proposals on a matter within its competence. This is an important and welcome development under the treaty and putting it into place is a priority for the Government.
If there is sufficient clarity in the coming days on the intentions of the President of the Czech Republic, the European Council will discuss institutional issues, including implementation of the treaty. Consideration will have to be given to two new high level appointments, namely the President of the European Council and the High Representative of the Union for Foreign Affairs and Security Policy. In addition, the Irish member of the European Commission will need to be appointed and the Government is considering this.
After intensive contacts and negotiations, the European Council in December 2008 defined a path to allow the treaty to enter into force by the end of 2009. The Council agreed that, provided the treaty enters into force, a decision will be taken to the effect that the Commission shall continue to include one national per member state. This represented a clear and positive response to a key concern that arose in last year's referendum. It can truly be said that the Irish people made that arrangement by their vote. The Irish people formed the catalyst for the rethinking of national attitudes to the proposal for one Commissioner per member state in the past 12 months.